1. law, govt and politics

What is Transnational Counter-Terrorism Law-Making?
Tilmann Altwicker
PLEASE NOTE: THIS IS A DRAFT ONLY. PLEASE DO NOT QUOTE WITHOUT
PERMISSION OF THE AUTHOR.
Abstract ........................................................................................................................................................ 2
Introduction................................................................................................................................................. 2
A.
Transnational Counter-Terrorism Law and Non-State Actors ................................................ 7
I.
Regulatory Law............................................................................................................................... 8
II.
Depth and Direct Effect ............................................................................................................... 12
III.
B.
Constitutional Gatekeeping .................................................................................................... 20
Reasons for Transnational Cooperation on Counter-Terrorism ................................................ 26
I.
Efficiency Gains ............................................................................................................................ 27
II.
External Effects ............................................................................................................................. 28
III.
C.
Weakest Link Public Good ...................................................................................................... 29
Techniques of Transnational Law-Making on Counter-Terrorism ........................................... 30
I.
Harmonization .............................................................................................................................. 31
II.
Imposition ...................................................................................................................................... 36
III.
Diffusion .................................................................................................................................... 39
Conclusion: Two Principles of Transnational Counter-Terrorism Law-Making ............................ 42

Dr. iur. Tilmann Altwicker, LL.M. (CEU). Lecturer at the University of Basle. Email: [email protected]. I
thank Anne Peters and Nuscha Wieczorek for comments on an earlier version. The usual disclaimer applies.
Abstract
The paper examines international law-making on counter-terrorism. After more than 50 years of
suppression conventions on counter-terrorism, intense preoccupation by the Security Council with issues
of counter-terrorism in the last decade and a vast array of soft law instruments it is time for stocktaking of
structural principles underlying global counter-terrorism law-making. The core of my argument is that
global counter-terrorism law exists in large part as ‘transnational law’ and that it differs from
(traditional) international law both regarding the quality of the norms as well as regarding the techniques
used for its creation. These differences can (at least partly) be explained by a socio-legal analysis of the
reasons behind international cooperation in this field.
‘Transnational law’ refers to law on the conduct of individuals with cross-border application or effect.
Global counter-terrorism law is a prime example of the emerging field of transnational law. The paper
addresses transnational counter-terrorism law both from a doctrinal as well as from a socio-legal
perspective. On a doctrinal level, some key features of transnational counter-terrorism law are analyzed
(e.g. its regulatory nature and its potential for direct effect). The socio-legal analysis sheds light upon the
reasons why and how transnational counter-terrorism law is created.
The paper concludes that there are two (main) structural principles of transnational law-making on
counter-terrorism: the principle of integration and the principle of integrity. The ‘principle of integration’
contends that the gap between ‘the international’ and ‘the domestic’ in counter-terrorism is increasingly
bridged through an innovative body of law. This is evidenced, e.g., by global counter-terrorism law taking
the role of a ‘model law’ for domestic law-making, often facilitated by soft law guidance on how to
‘domesticize’ universal norms on counter-terrorism. The ‘principle of integrity’ requires global counterterrorism law-making to be informed and constrained by concerns of transnational constitutionalism.
Introduction
Counter-terrorism has become a highly innovative field of international law-making.1 For more
than a decade now (though with origins long before the attacks of 9/11), the international legal
While there is still no universal definition of terrorism in international law, other disciplines such as international
relations and philosophy have come up with viable working definitions. In this paper, I follow the definition given by
Todd Sandler defining terrorism as “the premeditated use or threat of use of violence by individuals or subnational
groups to obtain a political or social objective through intimidation of a large audience beyond that of the immediate
victims”, Todd Sandler, ‘Collective versus Unilateral Responses to Terrorism’ (2005) 124 Public Choice 75.
1
2
agenda has been preoccupied with counter-terrorism.2 The universal legislative framework
against terrorism currently consists of 14 multilateral conventions,3 two law-making Security
Council resolutions4 as well as a number of influential soft law instruments.5
A closer look at this universal legislative framework reveals that international law-making is in
a process of change. Though it seems too early to say whether the innovations in the field of
counter-terrorism are here to stay and may even spill over to other fields of international law
(disregarding for the moment whether that would be desirable at all),6 a systematic account of
the principles of global counter-terrorism law-making is lacking.7 While a comprehensive
account would have to include both the domestic dimension of global counter-terrorism lawmaking as well as judicial responses to it, a more limited approach is pursued here. The research
question that this paper seeks to answer is this: What is transnational counter-terrorism lawmaking? To answer this requires an argument on the existence of transnational law (and what
distinguishes it from international law), why and how it is created, and what principles its
creation follows.
For an overview see Nigel D. White, ‘The United Nations and Counter-Terrorism’, in Ana María Salinas de Frías,
Katja LH Samuel and Nigel D White (eds), Counter-Terrorism: International Law and Practice (OUP, Oxford, 2012) 54.
3 The UN Treaty Collection Database lists 14 major conventions (and their amendments) on the topic of terrorism, see
<https://treaties.un.org/Pages/DB.aspx?path=DB/studies/page2_en.xml&menu=MTDSG> accessed 19 May 2014.
For a general overview see Alex Conte, Human Rights in the Prevention and Punishment of Terrorism (Springer 2010), ch
3. Regarding treaty-law, I limit my analysis to the following five conventions deposited with the UN SecretaryGeneral: Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons,
including Diplomatic Agents (the 1973 Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons) (New York, 14 December 1973, 1035 UNTS 167); International Convention against
the Taking of Hostages (the 1979 International Convention against the Taking of Hostages) (New York, 18 December
1979, 1316 UNTS 205); International Convention for the Suppression of Terrorist Bombings (the 1997 International
Convention for the Suppression of Terrorist Bombings) (New York, 12 January 1998, 2149 UNTS 256); International
Convention for the Suppression of the Financing of Terrorism (the 1999 International Convention for the Suppression
of the Financing of Terrorism) (New York, 10 January 2000, 2178 UNTS 197); International Convention for the
Suppression of Acts of Nuclear Terrorism (the 2005 International Convention for the Suppression of Acts of Nuclear
Terrorism) (New York, 14 September 2005, 2445 UNTS 89).
4 SC Res. 1373 (2001); SC Res. 1540 (2004).
5 For reasons of space, I limit the analysis to the FATF Special Recommendations on Terrorist Financing, October 2001
(rev. 2012) <http://www.fatf-gafi.org/topics/fatfrecommendations/documents/ixspecialrecommendations.html>
accessed 13 May 2014. Other influential soft law instruments are the General Assembly’s Global Counter-Terrorism
Strategy, GA Res. 60/288, 20 September 2006, and Protection of Human Rights and Fundamental Freedoms while
Countering Terrorism, GA Res. 65/221, 5 April 2011.
6 For a critical stance see Kim Lane Scheppele, ‘From a War on Terrorism to Global Security Law’
< http://www.ias.edu/about/publications/ias-letter/articles/2013-fall/scheppele-terrorism> accessed 16 May 2014.
7 The term ‘principle’ refers to a highly ambiguous, context-sensitive yet indispensible concept of legal research. In the
present context, I use of the concept of ‘principle’ (unless explicitly stated otherwise) in terms of a ‘structural
principle’ denoting order in an otherwise under-organized set of legal materials and thus rationalizing it. ‘Structural
principles’ are “scholarly abstractions which define legal structures within the positive law in the sense of significant
regularities”, Armin von Bogdandy, ‘General Principles of International Public Authority: Sketching a Research Field’
(2008) 9 German LJ 1909, 1910.
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3
There are four preliminary remarks. First, it should be noted that the present analysis is
concerned with the ‘legislative’ part of global counter-terrorism law-making, i.e. the creation of
norms of an abstract-general nature.8 The paper does not have much to say about concreteindividual law-making, e.g. in the form of ‘targeted sanctions’ by the Security Council or about
international case-law on enforcement measures of global counter-terrorism.
Second, in order to be able to answer the research question one must have an idea of what
international law is fundamentally about, what interests it serves (and how). To phrase it as a
question: What assumption concerning the purpose of international law do we make when we
say that (more) international law is desirable or even necessary in the fight against global
terrorism? For the aims of this paper, I assume that international law is in essence about
cooperation among the actors of international law.9 For support, I rely on a recent work by Joel
Trachtman, The Future of International Law.10 I follow Trachtman (who, in turn, relies on
Wolfgang Friedmann) on his starting point that international law is about (a formal type of)
cooperation.11
Third, one needs to define ‘transnational law’ in order to find out the principles underlying its
creation. There have been many definitional attempts, but more often than not they do not offer
a promising avenue for further legal research.12 Throughout this paper, I will refer to
For a conceptual overview see Jutta Brunnée, ‘International Legislation’ (Max Planck Encyclopedia of Public
International Law, MEPIL, October 2010) < http://opil.ouplaw.com/home/epil> accessed 19 May 2014.
9 In this paper, I do not explicitly justify this assumption. However, I submit that it can legitimately claim plausibility:
Speaking of international law as a formal type of cooperation contains, in my view, a considerably weak and widely
shared assumption about the finality of international law (far weaker than, e.g., contending that international law is
about ‘peace’ or about a ‘just world order’).
10 Joel P. Trachtman, The Future of International Law: Global Government (CUP 2013). The following is based on my
review of Trachtman’s work, see Tilmann Altwicker, ‘Die Zukunft des Völkerrechts – Rechtsökonomisch betrachtet’
(2014) Zeitschrift für Rechtswissenschaftliche Forschung 115.
11 Trachtman (n 10), ch. 2.
12 Definitions of transnational law are often either too broad or too narrow. Philip Jessup famously defined
‘transnational law’ in his 1956 Storrs Lectures as “all law which regulates actions or events that transcend national
frontiers … [relating to] [b]oth public and private international law … [as well as] other rules which do not wholly fit
into such standard categories”, Philip C. Jessup, Transnational Law (Yale University Press 1956) 2. Despite its prima
facie broadness, Jessup’s definition is too restricted to capture what is crucial in the study of transnational law:
Jessup’s definition does not seem to cover ‘transnational issues’, Craig Scott, “Transnational Law” as Proto-Concept:
Three Conceptions’ (2009) 10 German LJ 859, 864 (stating that “transnational issues” are those that are “constructed
by interacting normative … discourses”, rather than “physical” cross-border actions or effects). Most definitions of
transnational law are too broad, however. Hathaway asserts that “transnational law includes all law that has crossborders effect, whereas international law refers only to treaties or other law that governs interactions between states”,
Oona Hathaway, ‘Between Power and Principle: An Integrated Theory of International Law’ (2005) 72 Univ of Chic
LR 469, 473 note 11. Vicki Jackson states that “[t]he term ‘transnational’ encompasses not only international law as it is
traditionally understood (to embrace widely adhered to treaties, conventions, and customary international law), but
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‘transnational law’ as ‘law on the conduct of individuals with cross-border application or
effect’.13 Transnational law, thus, has two conceptual elements: One element pertains to the
cross-border application or effect of norms, and the other to the conduct of individuals as the
object or target of these norms. On the basis of this definition, large parts of international law
dealing with inter-state affairs (e.g. the rules on state responsibility, the law of diplomatic
relations) would not be considered as ‘transnational law’.14 International human rights, on the
other hand, establishing entitlements for individuals in a multiplicity of states, are ‘transnational
law’. By using this doctrinal concept of transnational law we are able to flag out some norms (of
international or domestic law) as belonging to ‘transnational law’.
Fourth, regarding method, how should one analyze transnational law (and, as part of that,
transnational counter-terrorism law) and the principles underlying its creation? An analysis of
transnational law on counter-terrorism has to be ‘doctrinal’, i.e. systemizing a bundle of norms
and interpreting them on the basis of principles, as well as stating potential legal problems. For
an inquiry on the principles underlying the creation of transnational counter-terrorism law I
suggest using ‘socio-legal analysis’ (explaining the interaction of a variety of actors in the
creation of a distinct body of law).15 A socio-legal analysis of transnational law seems rewarding
for a number of reasons: First, one of the benefits is that socio-legal analysis allows for the
critique (and, maybe ultimately demanding the dissolution) of exceedingly problematic
also regional agreements and bilateral agreements, as well as the domestic law of foreign nations when considered,
relied on, or distinguished in another tribunal’s or law-making body’s decisions. Transnational law may also include
the domestic law of particular countries that seek to regulate transnational phenomena, such as migration,
‘trafficking,’ or citizenship”, ea, Constitutional Engagement in a Transnational Era (OUP 2010) 286 note 7.
13 This definition is inspired by the one given by Daniel Bethlehem, ‘The End of Geography: The Changing Nature of
the International System and the Challenge to International Law’ (2014) 25 EJIL 9, 23 (“the law that applies
internationally to the conduct of individuals”). See, similarly, Gregory Shaffer, ‘Transnational Legal Process and State
Change’ (2012) 37 Law & Social Inquiry 229, 232 (defining “transnational norms” as “legal norms that apply across
borders to parties located in more than one jurisdiction”).
14 As to the relationship between the concepts of ‘transnational’ and ‘international law’ it should be noted that they
are only partially overlapping: Some, but not all, international law is ‘transnational’ (maybe then best characterized as
international law in a ‘transnational mode’). At the same time, ‘transnational law’ is not necessarily ‘international law’
on a formal account of its source. Instead, also ‘domestic law’ can be ‘transnational law’. See Anne-Marie Slaughter
who states, “[t]ransnational law has many definitions. I mean to include here simply national law that is designed to
reach actors beyond national borders: the assertion of extraterritorial jurisdiction. Extraterritorial jurisdictional
provisions are often the first effort a national government is inclined to make to regulate activity outside its borders
with substantial effects within its borders”, Anne-Marie Slaughter, ‘A Liberal Theory of International Law’ (2000) 94
Am Soc’y of Int’l L Proc 240.
15 My distinction of ‘doctrinal’ and ‘socio-legal’ analysis of law differs from the conceptual differentiation suggested
by Ronald Dworkin, ‘Hart and the Concepts of Law’ (2006) 119 Harv L Rev F 95, 97‒8 (according to whom a
sociological concept relates to the question “what makes a particular structure of governance a legal system rather
than some other form of social control, such as morality, religion, force, or terror?” and the doctrinal to the problem of
“what makes a statement of what the law of some jurisdiction requires or permits true”).
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doctrinal dichotomies such as ‘law/non-law’, ‘public/private’, and ‘state/non-state’.16 In the
context of global counter-terrorism law, e.g., we face influential ‘soft law’ (such as the FATF
Special Recommendations) that in some ways defies the traditional ‘law/non-law’-dichotomy.
Second, in departing from a rigid, formalistic approach to legal sources and form, law in the
transnational sphere becomes a functional concept.17 In this perspective, exciting questions arise
concerning a functional division of (multilevel) law-making competences, e.g. ‘On what level
should a particular counter-terrorism problem be regulated?’, or ‘What function should
domestic counter-terrorism law assume from a transnational law-perspective?’18 Third, a sociolegal perspective on transnational law allows us to develop a more – in my view – adequate
understanding of how global law is made by interaction of a variety of actors through more
advanced sociological descriptions of law-making: for example by allowing – instead of binary,
‘all or nothing’-solutions – continuum, ‘more or less’-solutions,19 or by using cyclical
explanations of global law-making20.
The paper has three parts. Part A contains a doctrinal analysis of transnational counter-terrorism
law. It is about the existence of such a thing as ‘transnational counter-terrorism law’, and about
the main legal problems (direct effect, ‘constitutional gatekeeping’) that ensue from it. Part B
outlines three reasons why states cooperate on issues of global counter-terrorism. Part C
analyzes three techniques used for transnational counter-terrorism law-making. These parts
utilize a socio-legal approach to transnational law and explain why and how actors create
transnational counter-terrorism law. The conclusion, then, sums up the discussion through the
perspective of two structural principles underlying universal law-making on counter-terrorism:
The ‘principle of integration’ contends that the gap between ‘the international’ and ‘the
Ralf Michaels, ‘Globalization and Law: Law Beyond the State’ in Reza Banaka and Max Travers (eds), Law and Social
Theory (Hart 2013) 287. See also Peer Zumbansen, ‘Transnational Law’ in Jan Smits (ed), Encyclopedia of Comparative
Law (Edward Elgar Publishing 2006) 738 (“This framework would help to reflect on the dichotomies underlying and
informing international law while decisively moving onward to embrace a wider and more adequate view of global
human activities”).
17 Michaels (n 16) 287.
18 For a possible theoretical basis of a functional division of regulatory competences see Jürgen Habermas, ‘A Political
Constitution for the Pluralist World Society?’ (2007) 34 J of Chinese Phil 331; id, ‘The Constitutionalization of
International Law and the Legitimation Problems of a Constitution for World Society’ (2008) 15 Constellations 444.
For lack of space, the questions surrounding a functional division of (multilevel) law-making cannot be addressed
here.
19 See Dinah Shelton, International Law and Relative Normativity” in Malcolm Evans (ed), International Law (OUP
2003) 145, 167. I am grateful to Anne Peters for drawing my attention to this point.
20 See Terence C. Halliday and Bruce G. Carruthers, ‘The Recursivity of Law: Global Norm Making and National Lawmaking in the Globalization of Corporate Insolvency Regimes’ (2007) 112 Am J of Sociology 1135; Terence C. Halliday,
‘Recursivity of Global Normmaking: A Sociolegal Agenda’ (2009) 5 Annu Rev L aw Soc Sci 263.
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domestic’ in counter-terrorism is increasingly bridged through an innovative body of law. The
‘principle of integrity’ requires global counter-terrorism law-making to be informed and
constrained by concerns of transnational constitutionalism.
A.
Transnational Counter-Terrorism Law and Non-State Actors
Is there something like ‘transnational counter-terrorism law’? The first part provides a doctrinal
analysis of what I would call ‘transnational counter-terrorism law’.21 As stated in the
Introduction, transnational law refers to norms on the conduct of individuals with cross-border
application or effect. Crucial for understanding the transnational law-nature of global counterterrorism law is the peculiar relationship of this body of law to individuals. It is this relationship
that ultimately distinguishes transnational law from (traditional) international law.22 It shall,
therefore, be analyzed in detail here. How does transnational law on counter-terrorism affect
individuals? What problems ensue when transnational law regulates the conduct of individuals?
The following discussion shall be limited to law-making on the – what I want to call –
‘normative situation of non-state actors’, i.e. to shaping rights and obligations of non-state
actors.23 First, the ‘regulatory nature’ of transnational counter-terrorism law shall be traced in a
number of specific legal instruments (law-making treaties, law-making resolutions, and soft law
instruments). Second, the question of the depth and the problem of direct effect of transnational
regulatory norms will be analyzed. Third, the ensuing problem of – what shall be called here –
‘constitutional gatekeeping’ shall be discussed.
The confines of space force me to limit the discussion to elements pertaining to the first part of the definition of
‘transnational law’, i.e. the relationship of transnational law to individuals. An analysis of the elements relating to the
second part of the definition, i.e. the ‘cross border’-dimension of transnational law, must be left for later.
22 See, again, n 14.
23 For the purposes of this paper, a norm is considered to shape the normative situation of individuals if it is directed
at permitting, proscribing or commanding human conduct. As stated in the Introduction, a socio-legal perspective on
transnational law allows us to question misleading (doctrinal) dichotomies, such as, here, the dichotomy of ‘mediated’
and ‘unmediated’ law. While there is no world government creating or altering obligations with instant effect for all
of us, global law-making on the normative situation of individuals is far more complex than what could be pressed
into a simple model of ‘mediated-‘/’unmediated’-law. It is true that in an international society characterized by the
predominance of state actors the realization of the aim of regulating the conduct of individuals will most often imply
(at least) some concomitant act of law-making by states. This practice is, however, neither carved in stone nor does it
prejudge its normative desirability. Furthermore, a socio-legal perspective on transnational law would favor – instead
of employing a binary, ‘all-or-nothing’ solution – a continuum-explanation of the effect of cross-border law-making
on the normative situation of individuals, on this see supra n 19.
21
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I.
Regulatory Law
The concept of ‘transnational law’ captures one of the most significant recent developments in
global law-making: the turn to the individual. In the context of counter-terrorism, this turn to
the individual is of a different nature than, e.g., in international human rights law (which also is
transnational). Whereas transnational law in the past has usually been of a rights-conferring
nature, in the context of counter-terrorism (such as transnational organized crime), transnational
law is about controlling the conduct of individuals. This move has been identified by Jacob Katz
Cogan as the “regulatory turn” in international law.24 This means that the subjects of
international have in recent times
“at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and
created institutions and networks, formal and informal, that impose and enforce direct
and indirect international duties upon individuals or that buttress a state’s authorities
respecting those under and even beyond its territorial jurisdiction.”25
Since acts of terrorism are to a large part committed by non-state actors, law-making on counterterrorism law is a prime example for the “regulatory turn” in global law-making.26 Its
‘regulatory’ nature is a striking feature of transnational law-making on counter-terrorism.
‘Regulatory law’ shall be understood here as abstract-general norms (not necessarily made by a
parliamentary body) creating obligations for non-state actors (private individuals and non-state
entities).27 Subsequently, ‘transnational regulatory law’ refers to abstract-general norms with
cross-border application or effect creating obligations for non-state actors. In principle, there are
three instruments of transnational law-making used for shaping the normative situation of
individuals by abstract-general norms: law-making treaties, (unilateral) law-making resolutions,
and soft law instruments.
See Jacob Katz Cogan, ‘The Regulatory Turn in International Law’ (2011) 52 Harv Int’l LJ 321, 346 (describing the
historical impact of international criminal law and institutions in the early 1990s on the creation of direct obligations
for individuals).
25 ibid 325. The “turn to the individual” is one important, though not the only defining feature of transnational law
(the concept of transnational law is wider as it is not limited to international law but also encompasses domestic law
with cross-border application or effect). On how to distinguish between ‘transnational’ and ‘international law’ see
also n 14 (and accompanying text).
26 As Katz Cogan rightly stresses, the regulatory turn neither started with counter-terrorism law-making after the
9/11 attacks in the US nor is it, today, limited to it (given the international regulatory activity in fields such as
‘environmental law’, ‘organized crime’ and ‘violence against women’), see ibid 349–50.
27 cf ibid 324. Therefore, international human rights norms are not regulatory norms since they do not establish
obligations but entitlements of individuals.
24
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The bulk of transnational regulatory law in the field of counter-terrorism is contained in lawmaking treaties (transnational regulatory treaty-norms).28 There are currently 14 universal legal
instruments and four amendments dealing with counter-terrorism.29 Some norms of these
suppression conventions relate to the normative situation of individuals, i.e. they shape the
obligations and, much less, rights of non-state actors. The ambition of designing the normative
situation of individuals becomes clear from norms declaring that “[n]othing in this Convention
shall affect other rights, obligations and responsibilities of ... individuals under international law
...”30 One way in which suppression conventions influence the normative situation of
individuals is by requiring states to criminalize certain forms of individual conduct.31 Other
transnational regulatory norms concern the introduction of particular professional duties (e.g.,
the duty to verify a customer32, the duty to keep records on transactions33).
The normative situation of individuals is also shaped through law-making resolutions by the
Security Council (transnational regulatory resolutions). The two (sole) examples of law-making
resolutions so far, Security Council Resolutions 1373 (2001) and 1540 (2004), both ultimately
target the normative situation of non-state actors in an abstract-general way. Even though both
refer to “states” as formal addressees,34 their content regulates the conduct of non-state actors:
For example, Security Council Resolution 1373 (2001) demands the criminalization of
“the wilful provision or collection, by any means, directly or indirectly, of funds by their
nationals or in their territories with the intention that the funds should be used, or in the
knowledge that they are to be used, in order to carry out terrorist acts.”35
On the concept of a law-making treaty see Brunée (n 8), paras 4–6. See the list supra n 3.
See <http://www.un.org/en/terrorism/instruments.shtml> accessed 13 May 2014.
30 For example, art 21 of the 1999 International Convention for the Suppression of the Financing of Terrorism; art 4(1)
of the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism [emphasis mine].
31 art 2(1) and (2) of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents; art 1 and art 2 of the 1979 International Convention against the
Taking of Hostages; art 2 and art 4 of the 1997 International Convention for the Suppression of Terrorist Bombings; art
2 and art 4 of the 1999 International Convention for the Suppression of the Financing of Terrorism; art 2 and art 5 of
the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.
32 art 18(1)(b) of the 1999 International Convention for the Suppression of the Financing of Terrorism.
33 art 18(1)(b)(iv) of the 1999 International Convention for the Suppression of the Financing of Terrorism.
34 Couched in the formula of “[d]ecides that all States shall”, see SC Res. 1373 (2001), paras 1 and 2; SC Res. 1540
(2004), para 2.
35 SC Res. 1373 (2001), para 1(b). Another example for transnational regulatory law is ibid, para 1(d) requiring States
to “[p]rohibit their nationals or any persons and entities within their territories from making any funds, financial
assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of
persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities
28
29
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Similarly, Security Council Resolution 1540 (2004) mandates that states,
“… shall adopt and enforce appropriate effective laws which prohibit any non-State actor
to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or
biological weapons and their means of delivery, in particular for terrorist purposes, as
well as attempts to engage in any of the foregoing activities, participate in them as an
accomplice, assist or finance them.”36
Apart from the two law-making resolutions, there are a few other examples of counter-terrorism
resolutions where the Security Council (albeit in a more implicit and, above all, nonbinding
way) undertook to shape the normative situation of individuals.37
Lastly, the normative situation of individuals is, albeit to a lesser extent, also shaped by soft law
(transnational regulatory soft law provisions).38 The UN General Assembly has largely refrained
from taking part in transnational regulatory activity. In other words, in its counter-terrorism
resolutions, the General Assembly addresses the duties of states (often in a general way),39
reflects its own role as a coordinator and information provider,40 or as a initiator for further lawowned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the
direction of such persons.” This was recently confirmed in SC Res. 2133 (2014), para 2.
36 SC Res. 1540 (2004), para 2.
37 Clearly, in SC Res. 1624 (2005), para 1: “Calls upon all States to adopt such measures as may be necessary and
appropriate and in accordance with their obligations under international law to: (a) Prohibit by law incitement to
commit a terrorist act or acts; (b) Prevent such conduct; (c) Deny safe haven to any persons with respect to whom
there is credible and relevant information giving serious reasons for considering that they have been guilty of such
conduct.” See also SC Res. 1455 (2003), para 5 (adopted under Ch VII of the UN Charter): “Calls upon all States to
continue to take urgent steps to enforce and strengthen through legislative enactments or administrative measures,
where appropriate, the measures imposed under domestic laws or regulations against their nationals and other
individuals or entities operating in their territory, to prevent and punish violations of the measures referred to in
paragraph 1 of this resolution [targeted sanctions against the Taliban and the Al-Qaida] …” [Emphasis omitted.]
38 On the idea of “international legislative soft law” see Andrew T. Guzman and Timothey L. Meyer, ‘Soft Law’
(University of Georgia School of Law Research Paper Series, Paper No 2014-17, May 2014)
<http://ssrn.com/abstract=2437956> accessed 23 May 2014 (the idea of ‘international legislative soft law’ is “to send
each other costly signals about how they [the states] interpret the content of binding legal obligations”, ibid 13; it
pertains, however, to obligations of states, not of individuals).
39 For example, Measures to Eliminate International Terrorism, GA Res. 65/34, para 5: “Reiterates its call upon all
States to adopt further measures in accordance with the Charter of the United Nations and the relevant provisions of
international law, including international standards of human rights, to prevent terrorism and to strengthen
international cooperation in combating terrorism and, to that end, to consider in particular the implementation of the
measures set out in paragraphs 3 (a) to (f) of General Assembly resolution 51/210.” Ibid para 14: “Urges States to
cooperate with the Secretary-General and with one another, as well as with interested intergovernmental
organizations, with a view to ensuring, where appropriate within existing mandates, that technical and other expert
advice is provided to those States requiring and requesting assistance in becoming parties to and implementing the
conventions and protocols referred to in paragraph 13 above.” Ibid para 17: “Calls upon all States to cooperate to
prevent and suppress terrorist acts.” [Emphasis omitted.]
40 GA Res. 65/34 para 3.
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making,41 but it does not actively take part in regulatory transnational law-making.42 This may be
a wise move, given that the General Assembly has – in the context of counter-terrorism – taken
the role of a ‘constitutional gatekeeper’ as will be illustrated below.43 Indeed, it seems
problematic for one institution to exercise both a regulatory function and a constitutional
gatekeeping function.
At the same time, new important actors that create transnational regulatory soft law provisions
on counter-terrorism have entered the scene. An example is the Financial Action Task Force
(FATF), an intergovernmental body established by the G-7 Summit Group in 1989.44 The FATF is
an expert-driven transnational legislative network.45 The task of the FATF is “to set [soft law,
T.A.] standards and promote effective implementation of legal, regulatory and operational
measures for combating money laundering, terrorist financing and other related threats to the
integrity of the international financial system.”46 A central soft law-instrument for counterterrorism financing is the FATF Special Recommendations on Terrorist Financing.47 Most of the
nine recommendations are addressed to “states”, but some read clearly as transnational
regulatory norms. Special Recommendation no. IV illustrates that:
“If financial institutions, or other businesses or entities subject to anti-money laundering
obligations, suspect or have reasonable grounds to suspect that funds are linked or related
ibid para 8: “Expresses concern at the increase in incidents of kidnapping and hostage-taking with demands for
ransom and/or political concessions by terrorist groups, and expresses the need to address this issue.” [Emphasis
omitted.]
42 One exception is ibid para 9: “Urges States to ensure that their nationals or other persons and entities within their
territory that wilfully provide or collect funds for the benefit of persons or entities who commit, or attempt to commit,
facilitate or participate in the commission of terrorist acts are punished by penalties consistent with the grave nature
of such acts.”
43 See Nigel White, ‘Terrorism, Security and International Law’ in Aidan Hehir, Natasha Kuhrt, Andrew Mumford
(eds), International Law, Security and Ethics: Policy Challenges in the Post-9/11 World (Routledge 2011) 9, 22 (arguing that
the General Assembly is “more concerned with a policy of trying to dissuade disaffected individuals from using
terrorism by tackling the causes of terrorism”).
44 See <http://www.fatf-gafi.org/pages/aboutus/> accessed 19 May 2014. The FATF has – as of November 2013 – 36
members including two regional organizations. For an overview on FATF see Yee-Kuang Heng and Kenneth
McDonagh, Risk, Global Governance and Security (Routledge 2009) 51–78.
45 See Dieter Kerwer and Rainer Hülsse, ‘How International Organizations Rule the World: The Case of the Financial
Action Task Force on Money Laundering’ (2011) 2 Internat’l Org Stud 50, 55.
46 <http://www.fatf-gafi.org/pages/aboutus/> accessed 13 May 2014. On the FATF see Ilias Bantekas, ‘The
International Law of Terrorist Financing’ (2003) 97 AJIL 315, 319 et passim.
47 FATF Special Recommendations on Terrorist Financing, October 2001 (rev. 2012) <http://www.fatfgafi.org/topics/fatfrecommendations/documents/ixspecialrecommendations.html> accessed 13 May 2014.
41
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to, or are to be used for terrorism, terrorist acts or by terrorist organisations, they should
be required to report promptly their suspicions to the competent authorities.”48
In sum, the regulatory nature of universal counter-terrorism law manifests itself in all three
instruments of transnational law-making (transnational regulatory treaties, resolutions, and soft
law) and must be considered a central feature to this body of law.
II.
Depth and Direct Effect
In some areas of global counter-terrorism law we find particularly detailed norms setting out
internationally preferred policy choices and instruments on the control of individual conduct.49
Suppression conventions do not only regulate individual conduct through criminalizationrequirements, but they also entail other elaborate state duties regarding the regulation of the
conduct of individuals. For example, some conventions oblige states to introduce specific types
of sanctions on individuals (such as freezing, forfeiture or seizure of funds)50, they require states
to lay duties on private individuals and institutions and to give them an active role in the
prevention of terrorism (such as the ‘know your customer’-strategy or reporting-obligations),51
or they require states to ensure the alleged offenders’ presence for the purpose of prosecution or
extradition (in effect a duty to take the offender into custody).52 Some parts of transnational
regulatory law seek to place particularly detailed duties on individuals. The 1999 International
Convention for the Suppression of the Financing of Terrorism may serve as an example where it
mandates states to require “financial institutions to maintain, for at least five years, all necessary
records on transactions, both domestic or international.”53
The question of regulatory depth has important implications for human rights. In fact, human
rights’ inspired reasoning should provide guidance on the question of what intensity or depth is
required for transnational regulatory norms. The more transnational counter-terrorism law
impacts important individual rights (such as the right to life and liberty), the more detailed its
FATF Special Recommendations on Terrorist Financing, October 2001 (rev. 2012) <http://www.fatfgafi.org/topics/fatfrecommendations/documents/ixspecialrecommendations.html> accessed 13 May 2014, no. IV.
See also ibid. no. VI, VII.
49 See Cogan (n 24) 338 note 74.
50 art 8(1) and art 8(2) of the 1999 International Convention for the Suppression of the Financing of Terrorism.
51 art 18(1)(b) of the 1999 International Convention for the Suppression of the Financing of Terrorism.
52 For example, art 10(2) of the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.
53 art 18(1)(b)(iv) of the 1999 International Convention for the Suppression of the Financing of Terrorism.
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norms should be in order to satisfy the principle of legality (in particular legal clarity).54
Transnational counter-terrorism law currently lives up to this demand only partially. For
example, while some formulations used in suppression conventions regarding the elements of
terrorist offenses (e.g. of possession of nuclear material, providing terrorist funding) are drafted
with sufficiently high precision so as to fulfill the demands of legal clarity,55 other formulations
are of a troubling vagueness (in particular provisions criminalizing membership in terrorist
organizations).56
Another fundamentally important question is if transnational regulatory law can ever have –
what some would call – ‘direct effect’ (or be ‘self-executing’, to use the U.S. terminology). This
relates to the problem whether a norm containing international obligations may be enforced
domestically (by the courts or the administration) without a preceding implementation act by
the legislator.57 Generally speaking, the doctrine of direct effect (in most jurisdictions) requires
that the international norm must be precise and unconditional, and that it is addressed to
individuals (or other legal persons).58 There are two recent developments in the legal doctrine of
On a transnational reading of the ‘principle of legality’ and its requirements see Anne Peters, Jenseits der
Menschenrechte (Mohr Siebeck 2014) 70–81. The principle of legality and the requirement of precision of norms
establishing criminal offenses is not derogable even in times of emergency, see Human Rights Committee, General
Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), para 7.
55 For example, art 2 (1)(b) of the International Convention for the Suppression of the Financing of Terrorism: “Any
person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly,
unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge
that they are to be used, in full or in part, in order to carry out: … Any other act intended to cause death or serious
bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed
conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a
government or an international organization to do or to abstain from doing any act.”
56 See Ben Saul, ‘Criminality and Terrorism’ in Ana María Salinas de Frías, Katja LH Samuel and Nigel D White (eds),
Counter-Terrorism: International Law and Practice (OUP 2012) 133, 150-1.
57 See André Nollkaemper, National Courts and the International Rule of Law (OUP 2011) 118. For the doctrine of direct
effect in the context of EU law see Joseph Weiler, ‘The Transformation of Europe’ (1991) 100 YLJ 2403, 2413–4. From a
socio-legal perspective, the concept of direct effect is unsatisfactory for two reasons: First, it relies on the problematic
dichotomy of an ‘inside-/outside’-law, consolidating an exceedingly artificial differentiation among legal sources.
Here as in other cases, a socio-legal perspective on transnational law forces us to critique existing legal concepts.
However, more often than not – on a doctrinal level – we will lack other more differentiated concepts (as, I think, in
the case of direct effect). Secondly, the concept of direct effect pretends that there can be a clear-cut distinction to
‘indirect effect’ of legal norms. This position is, however, untenable, see supra n 84.
58 While these two conditions of direct effect are commonly required by domestic courts, there are differences to be
noted (on the different criteria of direct effect see Karen Kaiser, ‘Treaties, Direct Applicability’ MEPIL (OUP 2013)
<http://opil.ouplaw.com/home/epil> accessed 23 May 2014, para 6. Crucial for the purposes of this paper, there is
no unity on the question whether the international norm must confer a right upon individuals in order to have direct
effect (in favor of this position André Nollkaemper, ‘The Duality of Direct Effect of International Law’ (2014) 25 EJIL
105, 119). Contrary to that, I would argue that the conferral of rights to individuals by international norms is only a
description of the situation in which direct effect is typically contemplated by domestic courts and administrations.
Direct effect is, however, not conditioned upon the international norm conferring an individual right. It may well be
that a (precise and unconditional) norm of international law addressed to individuals contains an obligation, and
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direct effect that are relevant here: First, the doctrine of direct effect seems to be on the rise. It is
true that the wide implications of direct effect as contemplated under EU law are still the
exception and cannot be generalized for international law.59 Nevertheless, as André
Nollkaemper has recently shown, the idea of direct effect (albeit in the limited context of rightsconferring international law, not regulatory law) is gaining ground internationally.60 Secondly,
while traditional doctrine stressed the role of national law and institutions in the determination
of direct effect, this too seems to change.61 As Anne Peters (among others) has argued, direct
effect is also a matter for international law that can be decided upon by international courts and
tribunals.62
Can transnational regulatory norms on counter-terrorism ever have direct effect? Regarding the
first condition of direct effect, precision and unconditionality of the norms, some suppression
conventions do contain regulatory provisions that seem clear enough so as to describe in
sufficient detail the conduct required by individuals. As an example, one may refer to a
provision contained in the 1999 International Convention for the Suppression of the Financing of
Terrorism which suggests to contracting parties to consider the adoption of the following
measure:
“Adopting regulations imposing on financial institutions the obligation to report
promptly to the competent authorities all complex, unusual large transactions and
unusual patterns of transactions, which have no apparent economic or obviously lawful
should consequently be given direct effect in the domestic legal order. Examples for direct effect of (concreteindividual) obligations by international law can be found in the practice of international criminal courts. For example,
the ICC-Statute provides for arrest warrants or summons with direct effect in the domestic legal systems, see art 58
ICC-Statute. See Shuichi Furuya, ‘Legal Effect of Rule of the International Criminal Tribunals and Court upon
Individuals: Emerging International Law of Direct Effect’ (2000) 47 NILR 111. See, generally, Klabbers (n 121) 292
(“While different national traditions may reveal local differences, generally courts will look at whether the provision
concerned seems directly to create rights or obligations for individuals …”) [my emphasis]. I am grateful to Anne Peters
for a discussion of this point.
59 The doctrine of direct effect of EU law is famously connected with the Case C-26/62 Van Gend en Loos [1963] ECHR
1. See on this the articles published as part of ‘Revisiting Van Gend en Loos’ (Joint Symposium of the European Journal of
International Law and International Journal of Constitutional Law) (2014) 25 EJIL (2014) 83–199 and (2014) 12 ICON 94–
213.
60 Nollkaemper (n 58) 107 (listing global jurisprudence relying on direct effect).
61 For the traditional view see Kaiser (n 58), para 6 (“The question whether a treaty is directly applicable is determined
by domestic law and not by international law”), but see para 8 (“Although the question whether a treaty is directly
applicable can thus ultimately only be answered by reference to domestic law, international law is not irrelevant. The
domestic determination whether a treaty is directly applicable may depend upon the manner in which it has been
interpreted on the international plane”).
62 Peters (n 54) 444 (with references to the literature).
14
purpose, without fear of assuming criminal or civil liability for breach of any restriction
on disclosure of information if they report their suspicions in good faith.”63
While the content of this far-reaching regulation that contracting parties are required to adopt is
prescribed in detail by the transnational norm (and is fleshed out in further detail by FATF-soft
law), it clearly fails to meet the test of unconditionality. Already the wording shows that
domestic implementation legislation is required. Additionally, take the provisions – central to all
suppression conventions – on the criminalization of terrorist acts. Though these criminalizing
norms set out the terrorist crimes in detail, they cannot be said to be unconditional so as to
trigger direct effect: Direct effect of transnational norms criminalizing terrorism must fail as
suppression conventions do not pronounce upon the precise legal consequences of the offenses.
Consequently, all suppression conventions contain clauses on domestic (legislative)
implementation of the criminalization provisions.64
Usually, direct effect will fail the second condition of direct effect, i.e. the condition that
individuals must be the addressees of these norms. Indeed, international suppression
conventions usually contain – what some would call – ‘mediated law’, i.e. law that has the state
as addressee.65
The fact that, in practice, most transnational regulatory norms will not be directly effective does
not mean, however, that direct effect of these norms must be ruled out on a principled account.
Thus, should there be the enforcement of an international obligation of individuals without a
preceding domestic implementation act? There are some good arguments against the doctrine of
direct effect of transnational regulatory norms. Other than in the case of direct effect of
individual rights, in the situation of transnational regulatory norms individual conduct is
restricted or controlled by virtue of transnational law. Thus, the options for individual agency
art 18(1)(b)(iii) of the 1999 International Convention for the Suppression of the Financing of Terrorism.
For example: art 2 of the 1979 International Convention against the Taking of Hostages (“Each State Party shall
make the offences set forth in article 1 punishable by appropriate penalties which take into account the grave nature
of those offences)”; art 4 of the 1999 International Convention for the Suppression of the Financing of Terrorism
(“Each State Party shall adopt such measures as may be necessary: (a) To establish as criminal offences under its
domestic law the offences set forth in article 2; (b) To make those offences punishable by appropriate penalties which
take into account the grave nature of the offences”).
65 cf Cogan (n 24) 328. I use the term ‘mediated law’ here because it reflects the legal situation of suppression
conventions and for want of a more suitable description. However, from a socio-legal perspective on transnational
law, the concept is inapt to capture the spectrum of impact of transnational law on the normative situation of
individuals, see also my criticism supra n 23.
63
64
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are reduced (and not increased as in transnational human rights law). If one does not want to
argue on the basis of human rights-derived duties to protect other individuals (through the
direct effect of transnational regulatory norms), a rights’ based argument for direct effect of
regulatory norms is difficult to make. EU law supports this critical stance. Here, the problem of
(‘compulsive’ or ‘reverse vertical’) direct effect has been discussed in the context of EU
directives.66 In the case Kolpinghuis Nijmegen, the Court of Justice of the EU (CJEU; formerly
European Court of Justice, ECJ) had to rule on the problem of ‘reverse vertical’ effect of an EU
directive that had not been implemented in due time by the Netherlands.67 The case concerned
the question whether the Netherlands could nevertheless rely in the domestic criminal
proceedings on a provision of this directive against an individual. The CJEU declined that
directives could create obligations for individuals (absent an implementing measure by the EU
Member State).68 The arguments relied on the criminal law-context and dwelled on the principle
of non-retroactivity of criminal norms and, more generally, the principle of legality.69 The Court
also usually refers to the ‘nature’ of the law-making instrument stating that a “directive may not
of itself impose obligations on an individual and … a provision of a directive may not be relied
upon as such against a person before a national court.”70
There are, however, some more sympathetic voices on direct effect of transnational regulatory
treaty norms. While it seems clear that direct effect of transnational regulatory norms must
On the instrument of ‘directives’ in EU law see art 288 TFEU: “A directive shall be binding, as to the result to be
achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of
form and methods.” Directives are an “instrument of indirect resp. cooperative-/two-stage law-making”, see Matthias
Ruffert, ‘Art. 288 AEUV’ in Gralf Calliess and id, EUV/AEUV (4ed Beck 2011) para 23. [my translation]
67 Case C-80/86 Kolpinghuis Nijmegen BV [1987] ECR 3969. The domestic criminal proceedings concerned a companyrun café that had sold as ‘mineral water’ a beverage consisting of tap-water and carbon dioxide. The directive
provided that the EU Member States were to take steps to ensure that only water extracted from the ground of a
Member State (and only that from officially authorized sources) could be sold as ‘mineral water’. The public
prosecutor relied on this directive in criminal proceedings against the company despite the fact that the Netherlands
had not yet implemented the directive. This situation of ‘reverse vertical effect’ of directives differs from the situation
of ‘horizontal effect’ (or ‘third party effect’) of directives: The former plays out in the bilateral situation between the
state and the individual (in criminal or administrative law proceedings), while the latter relates to a situation
involving at least two private individuals. Just as in the case of ‘reverse vertical effect’ the CJEU has denied the
‘horizontal effect’ of directives for the reason that directives cannot, of themselves, establish duties for individuals, see
Case C-152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723.
68 Case C-80/86 Kolpinghuis Nijmegen BV [1987] ECR 3969, para 9. See also Joint Cases C-387/02, C-391/02 and C403/02 Silvio Berlusconi et al. [2005] ECR I-3624, paras 73–77. For a more permissive approach to ‘reverse vertical
effect’ (outside the criminal law-context) see the Opinion of Advocate General Jacobs, Case C-456/98 Centrosteel Srl
and Adipol GmbH [2000] I-6009, paras 34–5.
69 Opinion of Advocate General Kokott, Joint Cases C-387/02, C-391/02 and C-403/02 Silvio Berlusconi et al. [2005]
ECR I-3568, paras 140–1.
70 Case C-80/86 Kolpinghuis Nijmegen BV [1987] ECR 3969, para 9.
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remain the exception, it should not be discarded too early. In particular, direct effect of
transnational regulatory norms seems less problematic outside the criminal law-context, when
relating to other (civic) obligations of individuals.71 Anne Peters has convincingly argued that
international treaties may only be interpreted as to confer obligations on individuals under the
following restrictive conditions: First, the text must be clear on the question of conferring
(precise and unconditional) obligations on individuals so as to satisfy the principle of legality,
second, direct effect must serve the purpose of safeguarding important legal interests, and,
third, there must be a heightened risk for a deficient implementation and enforcement in
domestic law.72 In favor of direct effect of (sufficiently precise and unconditional) transnational
regulatory norms one could argue along similar lines as for direct effect of rights-conferring
transnational norms: First, direct effect of regulatory norms would both increase the
effectiveness and the importance of transnational law.73 Domestic law enforcement agencies
would be more actively drawn into the transnational legal process and the awareness for
transnational public security law would be raised. Direct effect could contribute to enhance
compliance with suppression conventions since more domestic actors would be directly
involved in applying transnational norms (courts, administration). Secondly, in some cases
direct effect may make resorting to the inherently problematic instrument of transnational
regulatory resolutions (by the Security Council) unnecessary: If the international society could
be sure that (some) transnational regulatory norms automatically become part of the ‘law of the
land’, there would be less need for imposing these norms by the Security Council through lawmaking resolutions. Third, direct effect could lead to more consistency between transnational
obligations and national law, “without their meaning being lost in translation.”74
What about direct effect of provisions in law-making resolutions by the Security Council? Can
(or must) law-making resolutions by the Security Council be given direct domestic effect? Most
resolutions by the Council – already by their wording – require the government to take
additional steps of implementation.75 This problem is of practical relevance: If norms contained
in law-making resolutions were directly applicable, they could act as a ‘legal basis’ for
I am grateful to Anne Peters for referring me to this point.
Peters (n 54) 79.
73 On the discussion of policy arguments for direct effect see John H. Jackson, ‘Status of Treaties in Domestic Legal
Systems: A Policy Analysis’ (1992) 86 AJIL 310, 322 (who speaks of ‘direct applicability’).
74 For this argument concerning (ordinary) direct effect see Nollkaemper (n 58) 118.
75 Nico Krisch, ‘Art. 41’ in Bruno Simma/Daniel-Erasmus Khan/Georg Nolte/Andreas Paulus (eds), The Charter of the
United Nations: A Commentary on the UN Charter (OUP 2012) para 36.
71
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restrictions of human rights.76 Some authors reject this: Nigel White has claimed that lawmaking resolutions are no “supranational legislation” with direct domestic effect.77 However, it
is not clear why law-making resolutions could never be treated as having direct effect
domestically.78 There seems to be no general or principle-based argument that would completely
bar direct effect of transnational regulatory norms contained in Security Council resolutions.
That direct effect of regulatory resolutions cannot be excluded does, however, not mean that
there are reasons to embrace such an effect either. In my view, one focal point of discussion
must be the quality of the norms (the other – the legitimacy of transnational regulatory
resolutions – is addressed below). Though norms contained in law-making resolutions are not
‘treaty law’ in the strict sense of the term, they may be addressed as ‘secondary treaty norms’
and – with some modification – they should be subjected to similar criteria regarding direct
effect.79 The decisive question is whether the regulatory norms contained in law-making
resolutions are sufficiently precise and unconditional. The two existing law-making resolutions
do not contain sufficiently precise and unconditional rules to be accorded direct effect. Also the
wording of Resolutions 1373 (2001) and 1540 (2004) reflects the necessity for further
implementation measures, e.g. when stating that laws should be adopted in accordance with the
appropriate domestic procedures.80 Additionally, apart from the absence of a statement on the
consequences of terrorist offences, the high level of precision required for a legal norm which
could serve as a legal basis in criminal proceedings is clearly not met by any law-making
resolution provision. Furthermore, the existence of special regimes monitoring the
implementation of the law-making resolutions supports the finding that these resolutions are
not designed to have direct effect domestically.81 In sum, while the possibility of direct effect of
law-making resolutions by the Security Council should not be excluded in principle, in most
See, e.g., art 8–11 ECHR which require that the interference be ‘prescribed by law.’ The question whether SC Res.
757 (1992) (and amending resolutions) against Serbia had direct effect and could be used as a legal basis in Irish law
for restricting the right to freedom of possession (art 1 Prot 1 ECHR) was at issue in the Bosphorus case (ECtHR, 30
June 2005, no. 45036/98, para 145). On the problem of domestic implementation of a Security Council resolution and
the correct identification of a ‘legal basis’ for interferences with Convention rights see also the Nada case (ECtHR, 12
September 2012, no 10593/08, para 173).
77 White (n 2) 72.
78 For a position favorable to the possibility of direct effect of Security Council resolutions see Peters (n 54) 452–3
(limiting the discussion to the situation of ‘targeted sanctions’).
79 Anne Peters, ‘Art. 25’ in Bruno Simma/Daniel-Erasmus Khan/Georg Nolte/Andreas Paulus (eds), The Charter of the
United Nations: A Commentary on the UN Charter (OUP 2012) para 47.
80 SC Res. 1540 (2004), para 2.
81 SC Res. 1373 (2001), para 6; SC Res. 1540 (2004), para 4.
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cases even transnational regulatory resolutions will require the adoption of domestic
legislation.82
Finally, the question arises whether there is anything similar to direct effect of transnational
regulatory soft law. A legal concept that has ‘family resemblance’ with direct effect is that of
‘consistent interpretation’.83 In our context, this raises the question whether domestic courts and
administrations may refer to transnational regulatory soft law when interpreting (domestic)
obligations of non-state actors, in effect ‘harmonizing’ obligations contained in domestic law
with transnational law.84 As transnational soft law instruments, like the FATF Special
Recommendations, specify and in some ways complement both transnational regulatory treatynorms and transnational regulatory resolutions, it cannot be excluded that domestic courts and
administrations may consult these for the purpose of facilitating consistent interpretation of
domestic and transnational law.85
In sum, there are good arguments against direct effect of either treaty-based or law-making
resolution-based transnational regulatory norms. This applies in the case of a criminal law
context where the requirements of legal certainty and non-retroactivity are of great concern. In
other fields of counter-terrorism, however, (e.g. controlling the conduct of financial institutions
and other areas of prevention) a restrictive application of the doctrines of direct effect and, as a
part of it, consistent interpretation may contribute to more efficient transnational law
enforcement.
For an in-depth analysis on the required implementation measures and potential problems see Bianchi (n 198) 892–
903 (relying on an analysis of country reports under Resolutions 1267 and 1373).
83 Some deny that ‘consistent interpretation’ can be consistently distinguished from direct effect, see Nollkaemper (n
58) 110.
84 In the EU law context, there is a ‘duty to consistent interpretation’ even with regard to EU soft law. See Case C322/88 Grimaldi [1989] ECR 4407, para 18: “The national courts are bound to take recommendations into consideration
in order to decide disputes submitted to them, in particular where they cast light on the interpretation of national
measures adopted to implement them or where they are designed to supplement binding Community provisions.”
85 This is the case e.g. in the Netherlands. See Joseph Fleuren, ‘The Application of Public International Law by Dutch
Courts’ (2010) 57 Netherlands Int’l LR 245, 250 (with references to Dutch case law): “Although courts are not obliged
to comply with them [rules of soft law], they frequently refer to those instruments when interpreting and applying
binding rules of public international law.”
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III.
Constitutional Gatekeeping
Finally, as transnational regulatory law increases, so does the need for what I call ‘constitutional
gatekeeping’.86 ‘Constitutional gatekeeping’ is understood here as the function of monitoring
‘regulatory law’ on the basis of ‘constitutional principles’.87 This task becomes more complicated
with transnational regulatory law where obligations of individuals (at least partially) originate
in ‘foreign’ or ‘international’ law or – even more complicated – in (often non-transparent,
exclusive) legislative networks. The problem of ‘constitutional gatekeeping’ raises some
fundamental questions: What arguments can be made on a level of principle that ‘constitutional
gatekeeping’ is necessary in the case of transnational regulatory norms? How do existing
transnational regulatory norms relate to constitutional principles (such as human rights)? Which
institution should exercise ‘constitutional gatekeeping’ on transnational regulatory norms?88
One objection that could be raised here is that ‘constitutional gatekeeping’ is unnecessary
because transnational regulatory law is only ‘mediated law’ and that, therefore, individuals are
not really directly affected by these norms. However, as transnational norms regulate the
normative situation of individuals in ever more detail, the margin of implementation for states
or regional organizations (such as the EU) diminishes. As an example, take again the provision
in the 1999 International Convention for the Suppression of the Financing of Terrorism that
suggests to contracting parties to require “financial institutions to maintain, for at least five
years, all necessary records on transactions.”89 Especially in cases where transnational
regulatory norms seek to establish a common standard by setting minimum-level requirements
the margin of legislative discretion in implementation decreases significantly. Jacob Katz Cogan
argued that the gap between ‘mediated law’ and ‘unmediated law’ (i.e. directly effective law)
Obviously, constitutional gatekeeping can take on many forms. The paradigm case of constitutional gatekeeping is
judicial review, by having a court determine with final say what is in conformity with the Constitution and may
properly be applied as ‘the law of the land’. However, judicial review is not suitable for all cases of transnational law.
87 By ‘constitutional principles’ I mean legal principles commonly established at the constitutional level or of a
constitutional provenience, such as primarily human rights, principles of governance (rule of law, good governance
norms) and principles on the political process (representation of interests and participation). As such, constitutional
principles are “general and important norms whose main function is the attribution of the binary qualification of
legal/illegal in light of overarching values”, von Bogdandy (n 7) 1912 (referring to Martti Koskenniemi).
88 My discussion leaves untouched the important question of what the source of these constitutional principles should
be (domestic law or international law).
89 art 18(1)(b)(iv) of the 1999 International Convention for the Suppression of the Financing of Terrorism.
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continues to decrease.90 In sum, as mediated law can affect the normative position of non-state
actors the problem of constitutional gatekeeping is triggered.
Despite the necessity to infuse constitutional principles (in particular, human rights) into the
process of creating transnational regulatory law, current practice does not look too bright. It can
be noted, though, that suppression conventions today refer to human rights and “subjective
international rights” (Anne Peters).91 Regarding transnational regulatory treaty-law, a few
examples shall suffice. The early suppression conventions, such as the 1973 Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons and the 1979
International Convention against the Taking of Hostages, contained “subjective international
rights” for alleged offenders: For example, detained alleged offenders should be granted
consular rights, such as “[t]o communicate without delay with the nearest appropriate
representative of the State of which he is a national …”92 or the right to be visited by a state
representative.93 Human rights protection in these early suppression conventions was addressed
rather vaguely in general terms as a state duty to grant “fair treatment”.94 A step towards
transnationalization was taken with the 1997 International Convention for the Suppression of
Terrorist Bombings, requiring that
“[a]ny person who is taken into custody or regarding whom any other measures are taken
or proceedings are carried out pursuant to this Convention shall be guaranteed fair
treatment, including enjoyment of all rights and guarantees in conformity with the law of
the State in the territory of which that person is present and applicable provisions of
international law, including international law of human rights.”95
Cogan (n 24) 349. See also my general remark supra n 23.
On the conception of the “subjective international right” see Anne Peters, ‘Das subjective internationale Recht’ in
Peter Häberle (ed), Jahrbuch des öffentlichen Rechts der Gegenwart 59 (2011) 411.
92 art 6(2)(a) of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons; art 6(3)(a) of the 1979 International Convention against the Taking of Hostages.
93 art 6(2)(b) of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons; art 6(3)(b) of the 1979 International Convention against the Taking of Hostages.
94 art 9 of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons. Tellingly, the content of “fair treatment” is to be determined by domestic human rights, see art 8(2) of the
1979 International Convention against the Taking of Hostages.
95 art 14 of the 1997 International Convention for the Suppression of Terrorist Bombings. For similar provisions see art
17 of the 1999 International Convention for the Suppression of the Financing of Terrorism; art 12 of the 2005
International Convention for the Suppression of Acts of Nuclear Terrorism.
90
91
21
It is clear, however, that these rights-related provisions target potential human rights’ violations
on the implementation level, the level of transnational law-making itself is not covered. A
cautious sign that all counter-terrorism efforts, be it on the national or the transnational level,
must conform to international human rights is contained in the “Draft Comprehensive
Convention against International Terrorism” (not in force), where the preamble in general terms
recalls the “necessity of respecting human rights and international humanitarian law in the fight
against terrorism.”96 If one accepts (which is far from settled) that there is a ‘normative
hierarchy’ in international law,97 some provisions in recent suppression conventions may be
interpreted as providing for the supremacy of constitutional principles over (regulatory) treaty
law.98 This constitutionalist interpretation is, however, highly presumptive. The following can
be gathered from this rather weak commitment to constitutional principles in the field of
transnational regulatory treaty norms: If international law continues to embark on transnational
regulatory law-making, the need for clear rules on normative hierarchy is reinforced.99
Similar considerations apply to law-making by the Security Council. It is known that
transnational regulatory resolutions by the Security Council and constitutional principles cannot
be squared easily. The initial law-making Resolution 1373 (2001) did not mention any duty to
observe human rights (except in the very specific context of granting refugee status to asylumseekers).100 What is missing, therefore, in this resolution is the general pronouncement that
domestic counter-terrorism measures must comply with international human rights’ standards.
The false start induced some actors to regard human rights as a matter to be separated from
global counter-terrorism. It is symptomatic that the Counter-Terrorism Committee (CTC), which
is to monitor state-compliance with Resolution 1373 (2001), in the beginning viewed any human
96
Preamble of the Draft Comprehensive Convention against International Terrorism, UN Doc. A/59/894, Appendix
II.
On the problem of ‘normative hierarchy’ in international law see Martti Koskenniemi, ‘Hierarchy in International
Law: A Sketch’ (1997) 8 EJIL 566; Dinah Shelton, ‘Normative Hierarchy in International Law’ (2006) 100 AJIL 291.
98 For example, art 21 of the 1999 International Convention for the Suppression of the Financing of Terrorism:
“Nothing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under
international law, in particular the purposes of the Charter of the United Nations, international humanitarian law and
other relevant conventions.”
99 The introduction of a clear normative hierarchy is indeed demanded by – what I call – the ‘principle of integrity’
(the second structural principle of transnational law-making), see text accompanying n 222.
100 SC Res. 1373 (2001), para 3(f).
97
22
rights’ considerations to be outside the scope of its mandate.101 Once human rights were off the
international agenda in the fight against terrorism, it proved difficult to introduce them. The
Security Council reacted by adopting Resolution 1566 (2004) reminding states to ensure that
“any measures taken to combat terrorism comply with all their obligations under
international law, and [that the states] should adopt such measures in accordance with
international law, in particular international human rights, refugee, and humanitarian
law.”102
In law-making resolutions, reference to human rights has only been made in the Preamble, but
not in operative paragraphs.103 As in the case of treaty-law, the problem remains of how to
guarantee international human rights already at the level of transnational law-making. This
touches upon the widely discussed problem (that is outside the scope of this paper) whether the
Security Council is bound by international human rights.104 If one (as I do) accepts that the
Security Council must obey international human rights, then the problem of ‘constitutional
gatekeeping’ at the transnational level arises in full sway.
If some form of transnational ‘constitutional gatekeeping’ is desirable or even necessary, who
should perform it? A first actor that comes to mind is domestic courts. In the case of
transnational regulatory treaty-norms, domestic courts are in the comfortable position to deny
direct effect to norms they consider problematic on constitutional principle. In effect, domestic
courts can use the concept of direct effect “as a shield” against treaty-norms to “protect domestic
political organs and, more generally, domestic values” simply by rejecting one of the conditions
of direct effect.105 However, it is questionable whether ‘constitutional gatekeeping’ at the
domestic level is a feasible solution in practice. It cannot be ruled out that some states are
‘pressed’ to change their laws by powerful transnational actors (states or international
organizations).106 For example, the U.S. imposes “special measures” on states that are unwilling
See Kim Lane Scheppele, ‘Global security law and the challenge to constitutionalism after 9/11’ (2011) Public Law
353, 369 (quoting Sir Jeremy Greenstock, the first head of the Counter-Terrorism Committee); see also E.J. Flynn, ‘The
Security Council’s Counter-Terrorism Committee and Human Rights’ (2007) 7 HRLR 371.
102 SC Res. 1566 (2004), Preamble.
103 But see SC Res. 1624 (2005), para 4 (this resolution was, however, not adopted under ch VII of the UN Charter).
104 For a thorough discussion see Peters (n 79).
105 Nollkaemper (n 58) 115–7, 121–4 (making clear that direct effect is not a “politics-free zone”).
106 Terence Halliday and Bruce Carruthers have described how international financial institutions pressed Indonesia
to bring its bankruptcy law in conformity with international standards, see Terence C. Halliday and Bruce G.
Carruthers, ‘The Recursivity of Law: Global Norm Making and National Law-making in the Globalization of
101
23
to participate in the global fight against counter-financing of terrorism.107 The threat of being cut
off from access to the U.S. banking system has proven to be a powerful tool to ensure that states
adopt transnational rules on counter-financing. In this situation it also seems unlikely that
‘constitutional gatekeeping’ by domestic courts would have enough ‘bite’. Similar problems
arise in the case of Security Council law-making: In the absence of an example of a provision
contained in a law-making resolution that has been given direct domestic effect it can only be
speculated whether domestic courts would engage in prior constitutional review of
transnational regulatory norms. Some domestic, regional and international courts have
struggled to exercise ‘constitutional gatekeeping’ in relation to targeted sanctions by the Security
Council.108 The task is not easier in relation to norms that enter the national sphere as rules
originating in transnational regulatory resolutions. In all likelihood domestic courts will be
deferential to transnational regulatory law by the Security Council. It suffices to say that,
presently, it cannot be taken for granted that constitutional concerns about transnational
regulatory norms will necessarily find a forum on the domestic level.
It is important, therefore, that there exists some form of ‘constitutional gatekeeping’ already on
the transnational level. Allen Buchanan and Robert O. Keohane have argued that global
governance institutions such as the Security Council should – for legitimacy reasons – respect (at
least, one would add) the “most widely recognized human rights.”109 However, as evidenced by
the relatively late inclusion of human rights into law-making resolutions, the Security Council
does not necessarily picture itself as a participant in a transnational legal discourse. This results
from what Martti Koskenniemi has aptly characterized as “the absence of what might be called a
legal culture” in the Security Council.110 A legal culture can be characterized as a “cultural form
Corporate Insolvency Regimes’ (2007) 112 Am J of Sociology 1135, 1154–62. For the role of transnational standards in
the reform of China’s law of criminal procedure see Sida Liu and Terence C. Halliday, ‘Recursivity in Legal Change:
Lawyers and Reforms of China’s Criminal Procedure Law’ (2009) 34 Law & Social Inquiry 911.
107 Mariano-Florentino Cuéllar, ‘The Mismatch between State Power and State Capacity in Transnational Law
Enforcement’ (2004) 22 Berkely J Int’l L 15, 38.
108 Some courts followed a deferential approach concerning ‘targeted sanctions’ by the Security Council, e.g. the Swiss
Federal Court (Nada) and the General Court of the EU (Kadi). For an overview see Machiko Kanetake, ‘The Interfaces
between the National and International Rule of Law: The Case of UN Targeted Sanctions’ (2012) 9 Int’l Org LR 267.
109 Allen Buchanan and Robert O. Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20 Ethics & Int’l
Affairs 405, 419–435.
110 Martti Koskenniemi, ‘The Police in the Temple. Order, Justice and the UN: A Dialectical View’ (1995) 6 EJIL 325,
327.
24
that orders social relations and persons through particular legal values and practices.”111 If the
Council continues to conform to a political mode of self-portrayal instead of a legal one there is
no guarantee that even the “most widely recognized human rights” will guide and limit its lawmaking. The more detailed regulatory provisions of Security Council law-making are, the more
urgent the respect for these rights becomes.
A potential ‘constitutional gatekeeper’ is the UN General Assembly. The General Assembly acts
as a ‘constitutional gatekeeper’ vis-à-vis the states. In this regard, the General Assembly
regularly calls for the observance of “international human rights, refugee and humanitarian
law” when implementing counter-terrorism measures in domestic law.112 The General Assembly
also pointed to the “obligation of States … to respect certain rights as non-derogable in any
circumstances”, making clear that counter-terrorism measures can never be treated as a human
rights’-free zone.113 In particular, the General Assembly uses four means to carry out its
‘constitutional gatekeeping’-function: It points to absolute prohibitions (deriving from
international human rights),114 it outlines state obligations flowing from international human
rights in specific, recurrent counter-terrorism situations (e.g. deprivation of liberty, border
control, extradition, profiling, interrogation)115 and it stresses the importance of particular
international human rights in counter-terrorism (e.g. right to equality before the law, right to a
fair trial, right to privacy, non-refoulement, right to an effective remedy and reparation, right to
due process).116 Lastly, the General Assembly also stresses – in a truly transnational spirit –
general conditions for domestic counter-terrorism legislation: It “urges States, while countering
terrorism … [t]o ensure that their laws criminalizing acts of terrorism are accessible, formulated
with precision, non-discriminatory, non-retroactive and in accordance with international law,
including human rights law.”117
Kirsten Campbell, ‘The Making of Global Legal Culture and International Criminal Law’ (2013) 26 LJIL 155, 160
[emphasis in the original].
112 See Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, GA Res. 65/221, 5 April
2011, para 4.
113 ibid, para 5.
114 ibid, para 6(a), (c), (d).
115 ibid, para 6(b), (h), (j), (k), (m), (n).
116 ibid, para 6(e), (f), (i), (o), (p).
117 ibid, para 6(l). See also ibid, para 6(q): “To shape and implement all counter-terrorism measures in accordance of
gender equality and non-discrimination.”
111
25
The General Assembly potentially also acts as a ‘constitutional gatekeeper’ vis-à-vis the other
UN organs, in particular the Security Council. In its resolution on the “Protection on Human
Rights and Fundamental Freedoms while Countering Terrorism”, the General Assembly stated
“the need to continue ensuring that fair and clear procedures under the United Nations
terrorism-related sanctions regime are strengthened in order to enhance their efficiency
and transparency, and welcomes and encourages the ongoing efforts of the Security
Council in support of these objectives, including by establishing an office of the
ombudsperson and continuing to review all the names of individuals and entities in the
regime, while emphasizing the importance of these sanctions in countering terrorism.”118
However, all of these statements are rather weak and are far from any real monitoring of
transnational regulatory law. It seems that the UN General Assembly has not exploited its full
potential as a meaningful ‘constitutional gatekeeper’ yet.119 Other potent ‘constitutional
gatekeepers’ (such as a world court) are not in sight.120 In sum, ‘constitutional gatekeeping’ at
the transnational level – while ever more important with the increase of transnational regulatory
instruments – is largely absent.
B.
Reasons for Transnational Cooperation on Counter-Terrorism
Why do we have something like transnational counter-terrorism law? This question cannot be
answered by doctrinal analysis in a satisfactory way. Instead, socio-legal analysis provides a
rewarding perspective. Drawing, as I indicated in the introduction, on Joel Trachtman’s
approach the initial question can be reformulated as follows: Why do states cooperate on
matters of transnational terrorism? Surely, the reasons for international cooperation are a
traditional ‘battle ground’ of the sociology of international law.121 Trachtman’s cooperationparadigm and method provides helpful guidance on this. Trachtman approaches international
cooperation from a public welfarist angle, claiming that the subjects of the international society
ibid, para 9.
For criticism of the role of UN General Assembly in counter-terrorism see White (n 2) 62.
120 One may contemplate an emerging transnational public or transnational civil society (e.g. in the form of NGOs,
internet fora, international newspapers) exercising (additional) ‘constitutional gatekeeping’-functions. It is one benefit
of transnational law to allow for the inclusion private actors both in the law-making as well as, arguably, in the
monitoring process.
121 For a useful introduction and overview on the theories of international cooperation see Jan Klabbers, An
Introduction to International Institutional Law (2nd ed. CUP 2009) 25–31.
118
119
26
(states, in his case) use international law “to better their lot.”122 Thus, according to Trachtman,
international cooperation takes place when it increases public welfare gains for the participating
members of the international society.123 Applying Trachtman to the problem at hand, what are
the welfare gains expected from cooperation on global terrorism?
I.
Efficiency Gains
A first straightforward reason why there is international cooperation on counter-terrorism is
(expected) efficiency gains. Transnational terrorism, by definition, crosses borders, as it targets
victims of foreign states, and often affects interests of more than one state. Efficiency gains
through international cooperation are relatively easily made: For example, by sharing
information on transnational terrorists, costly (and sometimes even impossible) intelligence
collection of each state on its own can be avoided.124 Furthermore, international cooperation
allows for joint counter-terrorism investigation and actions: Surveillance missions on the High
Seas where joint counter-terrorism action may reduce the costs of each participating state while
at the same time ensuring the global movement of people and goods are a suitable example.125
Furthermore, some have argued that cooperation tends to increase the ambitions of participants,
i.e. joint efforts would lead to an increased efficiency in the performance of a task.126 In sum,
international cooperation allows us to expect the generation of better results in the prevention
(and prosecution) of terrorist crimes.
Of course, not all members of the international society (states, for that matter) are affected by
transnational terrorism to the same degree. Those states more affected by transnational
terrorism are likely to anticipate more efficiency gains from increased international cooperation
Trachtman (n 10) 22–3. According to Trachtman, the content of public welfare is determined by domestic
procedures (in democratic states through voting and elections), see ibid 23. The liberal assumption that participants
want to increase their (absolute) welfare gains is, however, open to criticism, see Joseph M. Grieco, ‘Anarchy and the
Limits of Cooperation’ (1988) 42 International Organization 485, 487 (defending the realist position that states are
“positional”, not “atomistic”; instead, there are two “major barriers to international cooperation: state concerns about
cheating and state concerns about relative achievement of gains.”)
123 See Trachtman (n 10) 23.
124 For transatlantic intelligence information sharing between the U.S. and the EU see Christian Kaunert, ‘The External
Dimension of EU Counter-Terrorism Relations: Competences, Interests, and Institutions’ (2010) 22 Terrorism and
Political Violence 41, 55. In many cases, foreign intelligence services will lack even the capabilities to collect
information on transnational terrorism on their own and therefore instead rely on international intelligence networks.
See Jennifer E. Sims, ‘Foreign Intelligence Liaison: Devils, Deals, and Details’ (2006) 19 Int’l J of Intelligence and
CounterIntelligence 195.
125 See on this Yonah Alexander and Tyler B. Richardson, Terror on the High Seas: From Piracy to Strategic Challenge
(ABC-Clio 2009).
126 Wynn Rees, Transatlantic Counter-Terrorism Cooperation: The New Imperative (Routledge 2006) 30.
122
27
than less affected states. Furthermore, asymmetries in size or power of the actors (i.e. the
capability to counter threats of transnational terrorism) are likely to affect each state’s
willingness to cooperate.127 For example, while Switzerland has good reasons to consider itself a
safe place as regards transnational terrorism, participation in European and international
security networks, e.g. Schengen, has always been a political priority.128 A central reason is the
limited capacity of Switzerland to independently ensure its own security.129
II.
External Effects
Efficiency gains are not the only reason why states cooperate on matters of counter-terrorism.
The way states deal with problems of global terrorism is likely to produce (negative) external
effects, i.e. adverse effects caused by one state affect another state.130 In the context of counterterrorism, some speak of “security externalities”.131 The following hypothetical may serve as an
example: State A has a common border with state B. Due to a lack in professionalism and
capacity, state B does not provide for effective transport security and border control which
causes increased spending in state A in order to prevent terrorists from infiltrating the country
from across the border.132 The inaction (or incapacity) of state B, thus, has external effects in state
A. In times of global interdependence the potential impact of negative externalities is ever more
powerful and widespread.133 Cooperation is a way to address or “internalize” some negative
externalities. To get back to the example of states A and B: State A would enter into bilateral
cooperation with state B or seek assistance from other states or the international society.134
127
On this point see generally Daniel W. Drezner, ‘Globalization and Policy Convergence’ (2001) 3 Int’l Studies R 53,
60.
On the terrorism-situation in Switzerland see the 2013 Situation Report of the Federal Intelligence Service (FIS)
<http://www.vbs.admin.ch/internet/vbs/en/home/documentation/publication/snd_publ.html> accessed 19 May
2014.
129 This is especially true regarding the protection of Switzerland’s airspace which currently partly relies on foreign
contributions, e.g. by France and Italy.
130 On external effects and international law see Jeffrey L. Dunoff and Joel P. Trachtman, ‘Economic Analysis of
International Law’ (1999) 24 Yale J Int’l L 1, 14–6.
131 Howard C. Kunreuther and Erwann O. Michel-Kerjan, ‘The Economics of Security Externalities: Assessing,
Managing
and
Benefiting
from
Global
Interdependent
Risks’
(2007)
<http://www.opim.wharton.upenn.edu/risk/papers/> accessed 19 May 2014.
132 This is the case, e.g., with the Tajik-Afghan border. See the 2012 Country Reports on Terrorism (United States
Department
of
State
Publication,
Bureau
of
Counterterrorism,
May
2013)
<http://www.state.gov/j/ct/rls/crt/2012/index.htm> accessed 19 May 2014.
133 As Howard C. Kunreuther and Erwann O. Michel-Kerjan write, “[p]eople, organizations and/or governments may
not realize how their failure to operate can affect a large number of agents, often rippling far beyond their direct
influence” (n 131) 3.
134 The latter happened in the case of Tajikistan: “Tajikistan has made progress in improving border security with
bilateral and multilateral assistance, though effectively policing the Tajik/Afghan border is a monumental task
128
28
In the situation of external effects, collective action problems arise, such as deterrence races
between states (by overspending of each state on counter-terrorism and thus deflecting terrorist
attacks to third countries) and free-riding problems (where one state anticipates another state to
act that is either more powerful or more likely to be affected by an otherwise shared terrorist
threat).135 Cooperation in the form of international law is an attempt to address these collective
action problems. Rules on jurisdiction that are contained in all international counter-terrorism
conventions are a good example: By allocating jurisdiction, these international rules “establish
congruence between decision-making authority and the effects of the exercise of authority.”136
Requiring contracting states to establish jurisdiction over certain terrorist offences (as
suppression conventions do), thus, eliminates a free-riding problem: Contracting states are
required to act upon allegations of terrorist offenses regardless of whether they anticipate
another state to act as well.
III.
Weakest Link Public Good
In international legal literature, the global public goods-taxonomy has recently gained some
currency.137 It can be useful for understanding global law-making efforts on counter-terrorism as
well. The production of global public goods (and the problems surrounding that) is another
reason why actors engage in international cooperation. ‘Public goods’ are defined by two
characteristics: non-rivalry (i.e. the good may be consumed by one actor without diminishing its
availability to others) and non-excludability (i.e. no actor may be excluded from consumption
regardless whether she contributed to its production or not).138 The following goods are, among
others, discussed under the heading of ‘global public goods’: environment, health, cultural
heritage, knowledge and information, peace and security.139
requiring more resources and capabilities than the Tajik government has. The International Organization on
Migration and the OSCE worked to improve travel document security. The OSCE has funding to link Tajikistan’s
existing passport data scanners at airports and land ports of entry to the Interpol database”, 2012 Country Reports on
Terrorism (n 132) 171–2.
135 Todd Sandler, ‘Collective Action and Transnational Terrorism’ (2003) 26 World Economy 779, 781.
136 Trachtman (n 10) 26.
137 See Inge Kaul, ‘Global Public Goods: Explaining their Underprovision’ (2012) 15 J of Int’l Econ L 729; Daniel
Bodansky, ‘What’s in a concept? Global Public Goods, International Law, and Legitimacy’ (2012) 23 EJIL 651; Gregory
C. Shaffer, ‘International Law and Global Public Goods in a Legal Pluralist World’ (2012) 23 EJIL 669.
138 Bodansky (n 137) 652.
139 This list is based on the case studies in Inge Kaul, Isabelle Grunberg and Marc A. Stern (eds), Global Public Goods:
International Cooperation in the 21st Century (OUP 1999).
29
Public goods are usually distinguished on the basis of differences in their provision: aggregate
effort public goods, single best effort public goods, and weakest link public goods.140 Aggregate
effort public goods are those that can only be produced together (by all states). Daniel Bodansky
gives the example of climate change mitigation. Climate change mitigation is “a function of the
total level of greenhouse gas emissions reductions achieved by all of the countries in the
world.”141 Single best effort public goods are unrelated to cooperative efforts, but instead
“depend on the single best effort of an individual actor or small group of actors”, such as
scientific discoveries.142 Most relevant in the context of counter-terrorism is the third category of
weakest link public goods. The provision of such goods does not depend on aggregate effort,
but on the performance of the “weakest” member of a community.143 An example is the
prevention of global pandemics: The success of the eradication of smallpox could be “undone by
a single actor that fails to do its part.”144 Some efforts by states in the global fight against
terrorism can be considered a weakest link global public good. For example, Nico Krisch has
recently discussed countering terrorist financing as a weakest link good.145 Efforts by individual
states to curb terrorist financing are seriously hampered (if not oftentimes futile) as soon as only
a few states do not comply with the global rules.146 The same is true for nuclear terrorism.147 All
attempts by the international society to prevent nuclear terrorism are in vain if only one state
defects.
C.
Techniques of Transnational Law-Making on Counter-Terrorism
How is transnational counter-terrorism law created? It is not an institutional analysis on actors
and procedures that shall be undertaken here. Instead, the last part of this paper deals with the
creation of transnational counter-terrorism law from a socio-legal perspective. What are the
techniques of cooperation (using law-making) in the field of global counter-terrorism?
See on this Bodansky (n 137), 658–65.
ibid 658–9.
142 ibid 663.
143 ibid 660.
144 ibid 661.
145 Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 AJIL 1, 20–5.
146 This is a reason why the international society seeks to eliminate ‘safe havens’ for terrorists, see SC Res. 1373 (2001),
para 2(c) (“Decides also that all States shall ... [d]eny safe haven to those who finance, plan, support, or commit
terrorist acts, or provide safe havens”) [emphasis omitted].
147 For an economics approach to nuclear terrorism as a weakest link-problem see Stefano Barbieri and David A.
Malueg, ‘Securing Security when Terrorists Attack the 'Weakest Link'’ (November 26, 2013)
<http://ssrn.com/abstract=1981319> accessed 19 May 2014.
140
141
30
I.
Harmonization
One technique of transnational law-making is ‘harmonization’. By ‘harmonization’ I mean the
reduction of differences between legal norms of different (national) origin through a binding
legal act with cross-border application. The typical instrument for harmonization of domestic
and international norms is an international treaty. The level of harmonization envisaged by the
international legal norm may vary ranging from ‘minimum harmonization’ to ‘full
harmonization’ or ‘unification’.148 Outside special regimes (like the EU) international lawmaking by harmonization is a consensual, non-hierarchical type of cooperation.149
Legal harmonization on the international plane is historically associated with private law.
Already in the late 19th century, scholars advocated cross-border harmonization or unification
of private laws.150 The rationale behind private law harmonization is an expected reduction of
transaction costs, i.e. the cost of participating in the market.151 Despite of evident differences to
private law harmonization, I nevertheless believe that the project of harmonization of other
fields (such as public and criminal law) can benefit from the experiences made with private law
harmonization.
From the 20th century onwards, the idea of harmonization is not limited to private law any
longer, but relates to all sorts of legal fields, such as labor law (especially work health and safety
laws),152 environmental law,153 health law154 etc. Harmonization of criminal law has become an
issue as well.155 In particular, harmonization of counter-terrorism law has resulted in significant
See
Martin
Gebauer,
‘Unification
and
Harmonization
of
Laws’
MEPIL
(OUP
2009)
<http://opil.ouplaw.com/home/epil> accessed 23 May 2014, para 24.
149 See Katharina Holzinger and Christoph Knill, ‘Causes and Conditions of Cross-National Policy Convergence’
(2005) 12 J of Eur Pub Pol’y 775, 782.
150 See Gebauer (n 148), para 2.
151 Katharina Pistor, ‘The Standardization of Law and Its Effect on Developing Economies’ (2002) 50 Am J of Comp L
97.
152 Junji Nakagawa, International Harmonization of Economic Regulation (OUP 2011) ch 6.
153 Katharina Holzinger, Christoph Knill and Thomas Sommerer, ‘Environmental Policy Convergence: The Impact of
International Harmonization, Transnational Communication, and Regulatory Competition’ (2008) 62 Int’l Org 553
(finding empirically an “impressive degree of environmental policy convergence” between 24 industrialized countries
between 1970 and 2000, mainly caused by international harmonization).
154 On the need to internationally harmonize public health standards see David P. Fiedler, ‘A Globalized Theory of
Public Health Law’ (2002) 30 J of Law, Medicine & Ethics 150, 153. Similarly, Lawrence O. Gostin and Allyn L. Taylor,
‘Global Health Law: A Definition and Grand Challenges’ (2008) 1 Public Health Ethics 53, 61 (pointing out that in
global health law it is not so much international standard-setting that is problematic but implementation and
coordination).
155 See Neil Boister, ‘Transnational Criminal Law?’ (2003) 14 EJIL 953. For the special context of harmonization of
criminal law the EU see Valsamis Mitsilegas, EU Criminal Law (Hart 2009) 59–114.
148
31
efforts by states in the past decade.156 In the EU, this objective has found its clearest expression
in the ‘Framework Decision on Counter-Terrorism’ of 2002 the purpose of which is to introduce
minimum rules concerning terrorist offences in the EU Member States.157 Some European
institutions continue to pressure for more harmonization of domestic counter-terrorism law.158
On the international level, the harmonization of counter-terrorism law is less openly framed as
an objective of international law-making. Nevertheless, harmonization is at least partially the
result of transnational law-making processes. The tendency of harmonization can be noted when
consulting the US Country Reports on Terrorism.159 To make harmonization processes more
efficient, there are numerous examples of best practices guides on how to transpose UN counterterrorism law into domestic law.160 On a bilateral level, there are currently ongoing negotiations
between the EU and the US on harmonizing existing counter-terrorism laws.161
Why does it make sense – under the cooperation-paradigm – to harmonize counter-terrorism
laws? First, Peter Andreas and Ethan Nadelmann expressed the underlying rationale of
harmonization as follows: “The capacity of a state to suppress transnational criminality depends
greatly on the extent to which its criminal law norms conform with or vary from those of
Kimmo Nuotio, ‘Terrorism as a Catalyst for the Emergence, Harmonization and Reform of Criminal Law’ (2006) 4 J
of Int’l Crim Justice 998, 1012 (discussing counter-terrorism efforts by the UN, EU and the Council of Europe and
concluding that “the goal of harmonizing national laws is difficult to reach”).
157 Council Framework Decision on Combating Terrorism [2002] OJ L 164/3.
158 For example, Eurojust, see Michèle Coinsx, ‘Strengthening Interstate Cooperation: The Eurojust Experience’ in Ana
María Salinas de Frías, Katja Samuel, Nigel D White (eds), Counter-Terrorism: International Law and Practice (OUP 2012)
965, 989. The task of Eurojust is, according to art 85 TFEU, “to support and strengthen coordination and cooperation
between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member
States.”
159 For example, a U.S. Country Report states that Bosnia and Hercegovina harmonized its criminal code with the EU
and UN legal framework on counter-terrorism, 2012 Country Reports on Terrorism (n 132) 63. Similarly, for
Montenegro see the 2008 Country Reports on Terrorism (United States Department of State Publication, Bureau of
Counterterrorism, April 2009) < http://www.state.gov/j/ct/rls/crt/2008/index.htm> accessed 19 May 2014, 85.
160 Domestic implementation of suppression conventions and law-making resolutions by the Security Council is often
aided by ‘model laws’. In the field of counter-terrorism, the UN Counter Terrorism Committee (CTC) has the mandate
to prepare model laws for the areas covered in Resolution 1373 (2001), SC Res. 1373 (2001), para 6; SC Res. 1377 (2001)
(inviting the CTC to explore the “promotion of best-practice in the areas covered by resolution 1373 (2001), including
the preparation of model laws as appropriate”). UNODC has prepared a comprehensive manual intended as model
for domestic counter-terrorism legislation <https://www.unodc.org/tldb/en/model_laws_treaties.html> accessed
19 May 2014. Model laws encompass suggestions for norms on terrorism in general but also relate to specific issues,
such as the financing of terrorism. These model laws have proved to be a valuable tool for developing domestic
counter-terrorism capacities, see C.A. Ward, ‘Building Capacity to Combat International Terrorism: The Role of the
United Nations Security Council’ (2003) 8 J of Conflict & Security L 289, 303.
161
See
Kristin
Archick,
‘U.S.-EU
Cooperation
Against
Terrorism’
(2013)
<https://www.fas.org/sgp/crs/row/RS22030.pdf> accessed 19 May 2014.
156
32
others.”162 Harmonization of counter-terrorism law is, in other words, a way to decrease
information deficits about foreign law and to create opportunities and obligations for future
cooperation and for further approximation of policies. Therefore, international counter-terrorism
conventions contain several clauses dealing with cooperation obligations or opportunities. Take,
e.g., the 1979 International Convention against the Taking of Hostages stipulating in Art. 4 (b)
that “States Parties shall co-operate in the prevention of the offences set forth in article 1,
particularly by … [e]xchanging information and co-ordinating the taking of administrative and
other measures as appropriate to prevent the commission of those offences.”163
Second, another objective of harmonization is improving the law. Harmonization is about
substituting domestic norms with “better” transnational norms.164 For example, counterterrorism norms usually seek to enhance the security-capacities of states facing transnational
terrorism threats. Examples are the duty to establish jurisdiction (over certain terrorist crimes),165
the duty to criminalize particular terrorist crimes,166 or the duty to establish the liability of legal
persons.167 In all of these cases, international law-making serves to strengthen domestic counterterrorism capacities.
Third, harmonization of counter-terrorism laws is a way to internalize “security externalities”
since collective action problems may be better addressed by cooperative rulemaking than by
individual solutions.168 In the situation of a shared threat, i.e. transnational terrorism,
harmonization of counter-terrorism law is a way to manage legal risks and thus ensuring more
Peter Andreas and Ethan Nadelmann, Policing the Globe: Criminalization and Crime Control in International Relations
(OUP 2006) 227.
163 art 4(b) of the 1979 International Convention against the Taking of Hostages.
164 For this argument in a commercial law context see Paul B. Stephan, ‘The Futility of Unification and Harmonization
in International Commercial Law’ (1999) 39 Va J Int’ L 743, 748. According to Trachtman’s welfarist approach
followed here, “better” rules are those that increase the (domestically determined) public welfare, see text
accompanying n 122.
165 For example, art 3 of the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons; art 5 of the 1979 International Convention against the Taking of Hostages; art 6 of the 1997
International Convention for the Suppression of Terrorist Bombings; art 7 of the 1999 International Convention for the
Suppression of the Financing of Terrorism; art 9 of the 2005 International Convention for the Suppression of Acts of
Nuclear Terrorism.
166 Examples: art 2(2) of the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons; art 2 of the 1979 International Convention against the Taking of Hostages; art 4 of the 1997
International Convention for the Suppression of Terrorist Bombings; art 4 of the 1999 International Convention for the
Suppression of the Financing of Terrorism; art 5 of the 2005 International Convention for the Suppression of Acts of
Nuclear Terrorism.
167 Example: art 5 of the 1999 International Convention for the Suppression of the Financing of Terrorism.
168 On this argument in a commercial law context see Stephan (n 164) 749. On “security externalities” see above Part
B.II.
162
33
stability in an important field of public policy.169 For example, transnational counter-terrorism
instruments usually require all contracting states to adopt laws criminalizing specific acts of
terrorism, e.g. the acquisition of nuclear material by private persons.170 Here, transnational law
sets a narrow margin for differences in domestic law-making in order to minimize potential
negative external effects. To take another example, the 1999 International Convention for the
Suppression of the Financing of Terrorism requires that contracting states adopt the “necessary
measures to enable a legal entity located in its territory or organized under its laws to be held
liable when a person responsible for the management or control of that legal entity has, in that
capacity, committed an offence set forth in article 2.”171 This norm entails harmonization in
relation to the goal that is to be achieved, namely, that legal persons may be held liable for
violations of legal norms on counter-financing of terrorism (it is, however, flexible as to the
means how to achieve that goal).172 In that way, the potential for adverse external effects caused
by differences in domestic legal systems regarding the sanctioning of legal persons are reduced,
though full harmonization is avoided.
In practice, transnational harmonization of counter-terrorism norms is a complex, often
impossible task. As the U.S. Counter-Terrorism Reports show, there are great differences among
the states regarding compliance with transnational norms on counter-terrorism.173 What are the
problems of harmonizing counter-terrorism law? A first obstacle to harmonization is the lack of
a shared understanding of the phenomenon to be regulated. For example, states will only be
willing to share information or to offer assistance when they can be sure that the act in question
is in fact to be considered as an act of terrorism. However, it is well-known that terrorism is
Adapting an argument by Stephan (n 164) 746.
art 5 of the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.
171 art 5(1) of the 1999 International Convention for the Suppression of the Financing of Terrorism.
172 According to art 5(3) of the 1999 International Convention for the Suppression of the Financing of Terrorism
liability may be operationalized through criminal, civil or administrative sanctions.
173 For example, the 2012 U.S. Country Report on Terrorism criticized Turkey for its “continued lack of progress in
adequately criminalizing terrorist financing and establishing a legal framework to freeze terrorist assets” (n 132) 100,
Kuwait and Yemen for lacking a legal framework for prosecuting terrorism-related crimes altogether (n 132) 126 resp
150. See Katja Samuel, ‘The Rule of Law Framework and its Lacunae: Normative, Interpretative, and/or Policy
Created?’ in Ana María Salinas de Frías, Katja Samuel, Nigel D White (eds), Counter-Terrorism: International Law and
Practice (OUP 2012) 14, 18 (noting the “poor harmonization of national, regional, and international anti-terrorism lawmaking and instruments”).
169
170
34
notoriously difficult to define174 and, in fact, the international society has not agreed upon a
universal definition of it.175
A second problem is the diversity of criminal law systems and criminal law cultures. For
example, even if a universal definition of transnational terrorism existed, it would still be
doubtful whether liberal democracies would share information gained in counter-terrorism
operations with non-liberal states.176 Even within the EU, the diversity of criminal law systems is
a severe obstacle to harmonization. The EU Member States have been reluctant to include
counter-terrorism among the truly supranational issues (i.e. opening up counter-terrorism for
EU harmonization).177 Instead, the method used is ‘mutual recognition’, i.e. the recognition and
enforcement of foreign criminal law, as second-best alternative to harmonization of counterterrorism laws.178
A third problem with harmonization of counter-terrorism law in its practical application is that
it is non-holistic, i.e. it focuses on individual norms rather than employing a systemic approach:
Harmonization affects some norms directly, but leaves other domestic norms that are only
indirectly implicated untouched. This may lead to unwanted systemic imbalances. The
introduction of the corporate liability norm mentioned above by the 1999 Convention for the
Suppression of the Financing of Terrorism is an example.179 Implanting such a norm into a legal
system may require changes in the law of criminal procedure and, at least as importantly,
It has been pointed out that the difficulty of definition is due to the fact that “various institutions compete for the
most appropriate approach”, Mathieu Deflem, ‘Terrorism’ in J. Mitchell Miller (ed), 21st Century Criminology: A
Reference Handbook (Sage 2009) 533. On the definition of terrorism followed in this paper see n 1.
175 As a (second-best) way out, international law-making relies on sectoral, context-specific definitions of terrorism,
e.g. acts of financing of terrorism or acts of nuclear terrorism, see art 2 of the 1999 International Convention for the
Suppression of the Financing of Terrorism and art 2 of the 2005 International Convention for the Suppression of Acts
of Nuclear Terrorism. Due to the freedom-fighter problem it has been deemed necessary to include provisions in
international conventions that further delineate the concept, e.g. clauses stating that terrorist acts “are under no
circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other
similar nature”, see, e.g., art 5 of the 1997 International Convention for the Suppression of Terrorist Bombings and art
6 of the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.
176 The reverse situation is also problematic: should courts in liberal states accept evidence allegedly gained from
torture in non-liberal states? For a recent case on the problem see Othman (Abu Qatada) v UK App no 8139/09 (ECHR,
17 January 2012). See generally Tobias Thienel, ‘The Admissibility of Evidence Obtained by Torture Under
International Law’ (2006) 17 EJIL 349.
177 Javier Argomaniz, ‘Post-9/11 Institutionalisation of European Union Counterterrorism: Emergence, Acceleration
and Inertia’ (2009) 18 Eur Security 151.
178 Oldrich Bures, EU Counterterrorism Policy: A Paper Tiger? (Ashgate 2011) 168. On transnational mutual recognition
in general see Kalypso Nicolaidis and Gregory Shaffer, ‘Transnational Mutual Recognition Regimes: Governance
Without Global Government’ (2005) 68 L and Contemp Prob 263.
179 art 5 of the 1999 International Convention for the Suppression of the Financing of Terrorism.
174
35
should be counter-balanced by domestic human rights (e.g. the extension of some procedural
human rights to legal persons). Transnational harmonization efforts do not sufficiently pay
tribute to these (indirect) consequences.
II.
Imposition
A second technique of transnational law-making is the ‘imposition’ of legal norms. By
imposition I mean the unilateral transfer of a norm through a legally binding act with crossborder application. An instrument for the imposition of transnational norms is a resolution (by
an organ of an international organization, paradigmatically the UN Security Council).
‘Imposition’ presupposes a hierarchical relationship, built on an asymmetrical distribution of
power.180 Due to its coercive nature, imposition as a technique of transnational law-making is
inherently problematic.
Law-making through imposition is still a great exception given that the international legal order
is based on the equality of states.181 Nevertheless, the Security Council has – with its counterterrorism agenda – entered into a “legislative phase” and, in particular, Resolutions 1373 (2001)
and 1540 (2004) are of a legislative character since they were unilaterally imposed through a
binding decision of the Security Council.182 This classification depends on how ‘law-making’ in
the context of the UN is understood. One has a fairly clear image of what law-making means in
the domestic context, usually involving an elected or at least democratically accountable body
which promulgates binding rules satisfying certain rule of law-criteria.183 There are obvious
differences to domestic law-making: Security Council law-making resolutions are addressed to
states only, not – as the case with domestic law-making – to individuals.184 Furthermore, the
procedure of adoption is much less formal than that of domestic laws which often require
multiple hearings.185 There is no such thing as an accepted ‘theory’ of law-making with regard to
Holzinger/Knill (n 149) 781.
art 2(1) UN-Charter.
182 Jose E Alvarez, ‘Hegemonic International Law Revisited’ (2003) 97 AJIL 873, 874. Examples from the vivid
discussion in the literature on Security Council law-making include: Paul C Szasz, ‘The Security Council Starts
Legislating’ (2002) 96 AJIL 901; Eric Rosand, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra
Innovative?’ (2005) 28 Fordham Int’l LJ 542; Stefan Talmon, ‘The Security Council as World Legislature’ (2005) 99 AJIL
175.
183 Lon Fuller, The Morality of Law (Yale University Press 1964) 46.
184 Roberto Lavalle, ‘A Novel, if Akward, Exercise in International Law-Making: Security Council Resolution 1540
(2004)’ (2004) 51 Netherlands Int’l LR 411, 415.
185 Talmon (n 182) 186–188 (stating that resolutions are usually prepared in the course of informal consultations of the
members and often adopted without a debate).
180
181
36
the UN.186 The simple reason is that until now such a theory was dispensable since law-making
was not conceived of as a possible competence of a UN organ. Note, however, that the Council
has never used the label of law-making for any of its acts. Instead of formally distinguishing
these acts the Council has cast them in the familiar style of decision-making in the form of
“resolutions”.187 In general, legislating is not something that international organizations
regularly do.188 The term ‘law-making’ should, therefore, be used with caution in the context of
the Security Council action.
Although a rare phenomenon in practice, Eric Rosand has claimed that there is a “widely
accepted definition of law-making” with regard to the UN.189 According to this definition, the
act must be unilateral, create or modify a legal norm of a general nature, and be directed to an
indeterminate group of addresses while capable of repeated application over time.190 In short,
the formal imposition of norms relates to the unilateral transfer of abstract-general norms of a
binding character.191 The element of ‘generality’ refers to the addressees: As the Colombian
delegate to the Security Council, Maggie Farley, stated, a legislative resolution “does not name a
single country, society or group of people.”192 Rather, it targets all states. ‘Abstractness’ relates to
the subject-matter of legislative resolutions: They are not concerned with a specific situation or
individualized conduct, but rather with a certain type of agency (e.g., financing of terrorism).193
Resolutions 1373 (2001) and 1540 (2004) meet these criteria. They are ‘general’ in the sense of
obligating ‘all states’.194 Furthermore, they are ‘abstract’ in the sense that they do not target a
The absence of meaningful ‘theories of law-making’ on the domestic level has often been noted: Jeremy Waldron,
The Dignity of Law-making (Cambridge University Press 1999) 1 (“There is nothing about legislatures or law-making in
modern philosophical jurisprudence remotely comparable to the discussion of judicial decision-making. No one
seems to have seen the need for a theory or ideal-type that would do for law-making what Ronald Dworkin’s model
judge, “Hercules,” purports to do for adjudicative reasoning”).
187 Some have held that the Security Council was unaware of the novelty of its action when adopting SC Res. 1373
(2001), see Szasz (n 182) 905.
188 Klabbers (n 121) 187 (pointing, i.a., to art 12 of the Chicago Convention which entrusts the International Civil
Aviation Authority with the power to establish rules regulating aircraft flying over the High Seas).
189 Rosand (n 182) 545 note 11.
190 ibid (referring, i.a., on the classic treatment in E Yemin, Legislative Powers in the United Nations and its Specialized
Agencies). See also Brunée (n 8) paras 48–51 (normative act promulgated unilaterally by an authorized organ and
containing general, abstract and directly binding legal norms).
191 See, e.g., Talmon (n 182) 176; Anne Peters, ‘Art. 24’ in Bruno Simma/Daniel-Erasmus Khan/Georg Nolte/Andreas
Paulus (eds), The Charter of the United Nations: A Commentary on the UN Charter (OUP 2012) para 67.
192 Maggie Farley, ‘U.N. Measure Requires Every Nation to Take Steps Against Terrorism’ (L.A. Times, 28 September,
2001), at A6, quoted by Talmon (n 182) 177 note 20.
193 See Matthew Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’ (2003) 16
LJIL 593, 598.
194 SC Res. 1373 (2001), paras 1–6; SC Res. 1540 (2004), paras 1–5; 8‒10. Interestingly, contrary to the paragraphs just
mentioned, para 6 of the latter resolution only refers to “Member States”.
186
37
specific situation, but aspects of terrorism as a particularly harmful form of human agency. In
this regard, Resolution 1373 (2001) concerns the financing of terrorism, while Resolution 1540
(2004) seeks to prevent nuclear, chemical or biological weapons falling into illicit hands,
especially that of terrorists. In line with their abstract-general nature, these resolutions do not
provide for a time-limit of application.195 They remain in force until repealed by the Security
Council and apply to an indefinite number of cases.
In the cooperation-paradigm used here, when does imposition of counter-terrorism law make
sense, and why? A pure efficiency-focus is too short-sighted in this case. While it may be more
efficient to rely on the ‘fast track’-procedure of Security Council norm-imposition, there are
serious concerns from a legitimacy-perspective: It seems to be clear that norm-imposition by the
Security Council, in the absence of a UN Charter amendment, may not replace the existing
procedures of international law-making, i.e. treaty law or customary international law.196 The
imposition of norms by the Security Council must, in other words, remain of a subsidiary
character only. This is sometimes addressed as ‘urgency-requirement’197 or as the existence of a
‘need for general law’.198 The urgency-requirement is met, in exceptional circumstances only, if
the ordinary procedure – despite the existence of an actual ‘threat to the peace’ – has either
failed (e.g., because a minority of states withholds their consent preventing an international
solution) or is unlikely to produce an efficient result (e.g. unspecific norms).199
Apart from this pragmatic reason, imposition can be an effective way to handle weakest linksituations: If the success of a counter-terrorism measure depends on the performance of the
weakest link, the rest of the international society has a particularly strong reason to force that
state to adopt the necessary rules.
Talmon (n 182) 176.
To install law-making by resolutions on equal footing with the other two law-making procedures – treaty-law and
customary law – would in my view require a formal amendment of the UN Charter (and other treaties). One reason is
that the legal architecture of the UN Charter contemplates ch VII-law as ‘crisis law’ (in particular, by virtue of art 39 of
the UN Charter). Security Council law-making without a ‘crisis’ of sorts is illegitimate. But, of course, one can argue
that severe cooperation deficiencies among states on a vital global public good constitute a ‘crisis’.
197 See Rosand (n 182) 579‒80 (“new and urgent threat not addressed by existing treaty regimes”).
198 See Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-terrorism Measures: The Quest
for Legitimacy and Cohesion’ (2006) 17 EJIL 881, 888.
199 See ibid (stating that customary law-making would – in the case of terrorism – not have produced sufficiently
precise norms, requiring, e.g., asset freezing or the criminalization of certain acts).
195
196
38
III.
Diffusion
Diffusion of law refers to consensual, non-binding law-making (or, rather, norm dispersion)
with transnational effect through transnational legislative networks.200 Transnational lawmaking by diffusion differs from harmonization in that the creation of conformity with
transnational legal norms does not follow from a legally binding formal act but from informal
interaction. Diffusion is also to be distinguished from imposition in that there is no hierarchical
relationship between the ‘law-creator’ and the ‘law-recipient’. Transnational networks engaged
in the diffusion of norms are, in principle, conceivable for any of the three branches of
government: there may be legislative, administrative, and judicial networks.201
In most areas, administrations and the judiciary seem to be more successful in establishing
transnational networks (e.g. on human rights, on environmental issues). However, in the field of
counter-terrorism, legislative networks have become crucial platforms for the dispersion of
transnational norms.202 At UN level e.g., the Counter Terrorism Committee (CTC) provides
legislative assistance to domestic law-making bodies.203 Another transnational legislative
network of increasing importance is the Organization for Security and Co-Operation in Europe
(OSCE).204 Various sub-units of the OSCE offer assistance to national legislators in drafting
legislation to criminalize terrorist offenses and to ensure its conformity with human rights.205
Another network that has become active in the field of counter-terrorism is NATO (North
On ‘diffusion of law’ see Richard M. Buxbaum, ‘Law, Diffusion of’ in Neil J. Smelser and Paul B. Baltes (eds),
International Encyclopedia of the Social and Behavioral Sciences (Elsevier 2004) 1.
201 See Martin S. Flaherty, ‘Judicial Foreign Relations Authority After 9/11’ (2011/12) 56 New York Law School LR
119, 140–144 (distinguishing between “executive”, “legislative”, and “judicial globalization”).
202 Flaherty (n 201) 142.
203 <http://www.un.org/en/sc/ctc/> accessed 19 May 2014.
204 On the OSCE as a transnational legislative network see Anne-Marie Slaugther, A New World Order (Princeton
University Press 2004) 128. The OSCE is a regional arrangement under ch VIII of the UN Charter, comprising 57 state
parties <http://www.osce.org/who> accessed 19 May 2014.
205 Ministerial Statement on Supporting the United Nations Global Counter-Terrorism Strategy (MC.DOC/3/07), para
22: “The Office for Democratic Institutions and Human Rights will continue to assist participating States, at their
request, in ensuring that their counter-terrorism initiatives are human rights compliant, pursuant to their OSCE
commitments. The ODIHR will continue to offer technical assistance and advice on the human rights aspects of the
drafting and implementation of national law-making aimed at countering the threats posed by terrorism, violent
extremism and radicalization that lead to terrorism, and will continue to facilitate dialogue between State and nongovernmental actors with a view to exploring areas of co-operation and mutual assistance (…).” See also the
Ministerial Council Ministerial Statement on Supporting and Promoting the International Legal Framework against
Terrorism (MC.DOC/5/06): “We will continue exchanging information, including through the Permanent Council
and the Forum for Security Co-operation, on progress achieved in becoming party to international, regional and
bilateral legal instruments against terrorism and on legal co-operation in criminal matters, as well as on developments
in the national law-making related to terrorism.”
200
39
Atlantic Treaty Organization) which established a network of civil experts on terrorism.206
Additionally, there are other regional organizations that form transnational legislative networks
on counter-terrorism, e.g., the Intergovernmental Authority on Development in Eastern Africa
(IGAD)207 or the Inter-American Committee on Terrorism (CICTE).208 Besides international and
regional organizations, there are individual states, such as the U.S. that became engaged in
transnational norm diffusion through governmental aid programs.209
What are the reasons for law-making by diffusion under the cooperation-paradigm? In a rather
broad sketch one may distinguish between the following rationales for diffusion of norms
through transnational legislative networks: transnational learning and (a flexible, informal type
of) transnational problem-solving.210 First, where global or regional norms do not command the
adoption of a specific solution or regulatory design (as is often the case), transnational lawmaking by diffusion allows learning from the experience of others. The rationale of
transnational learning assumes that governments pose themselves the question: “Under what
circumstances and to what extend would a programme now in effect elsewhere also work
here?”211 Take the example of material support to terrorism. International law requires the
criminalization of material support to terrorism, but leaves open which conception of material
support states adopt.212 Consequently, there are very broad approaches to material support, like
On NATO’s counter-terrorism activities see <http://www.nato.int/cps/en/natolive/topics_77646.htm?> accessed
19 May 2014. However, NATO’s activity is primarily on an operative, non-legislative level, e.g. conducting a number
of counter-terrorism activities, such Operation Active Endeavour (OAE, a maritime surveillance operation in the
Mediterranean).
207 IGAD has, in 2006, launched the “Capacity Building Programme against Terrorism” (ICPAT), see
<http://www.icpat.org/> accessed 19 May 2014. Enhancing counter-terrorism law-making in the region is one of the
core activities pursued by ICPAT, ‘Enhancing Judicial Measures’ <http://www.icpat.org/index.php/areas-ofactivity-mainmenu-106> accessed 19 May 2014. See also Rodrigo Tavares, Regional Security: The Capacity of
International Organizations (Routledge 2010) 52.
208 On the role of CICTE in providing legal assistance on counter-terrorism see José Raul Perales, ‘Crime, Violence,
and Security in the Caribbean’ (Woodrow Wilson Center Update on the Americas, June 2008, No. 29)
<http://theislamistsarecoming.wilsoncenter.org/sites/default/files/lap.cc.29.pdf> accessed 19 May 2014, 4.
209 See Leslie E. King and Judson M. Ray, ‘Developing Transnational Law Enforcement Cooperation: The FBI Training
Initiative’ (2000) 16 J of Contemp Crim Justice 386.
210 This is an adaptation to the legal context of the reasons given by Holzinger/Knill (n 149) 782–6.
211 Holzinger/Knill (n 149) 783 (quoting R. Rose).
212 See GA Res. 60/288, II § 2: “We resolve to undertake the following measures to prevent and combat terrorism, in
particular by denying terrorists access to the means to carry out their attacks, to their targets and to the desired impact
of their attacks: To cooperate fully in the fight against terrorism, in accordance with our obligations under
international law, in order to find, deny safe haven and bring to justice, on the basis of the principle of extradite or
prosecute, any person who supports, facilitates, participates or attempts to participate in the financing, planning,
preparation or perpetration of terrorist acts or provides safe havens.” SC Res. 1373 (2001), para 2: “Decides also that
all States shall: (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe
havens; (e) Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist
206
40
in the U.S., where even peaceful aid (such as provision of training on how to use international
law for resolving disputes peacefully) may be criminalized.213 On the other side of the spectrum,
there are narrower approaches to material support, for example in the case of Canada. Canadian
law requires that the contribution must be “made for the purpose of enhancing the ability of any
terrorist group to facilitate or carry out a terrorist activity.”214 The Canadian approach to
material support is more appropriate, if the social goal of a society is to cut off terrorist
organizations from the means to carry out their attacks while at the same time allowing for
“socially acceptable” forms of interaction with, say, charity organizations. On the other hand,
the U.S. approach is more appropriate, if any contribution to a terrorist organization is
considered of potential ‘dual use’ (i.e. furthering both legitimate and criminal aims).
Second, transnational legislative networks allow for flexible and informal transnational
problem-solving. According to Holzinger and Knill transnational problem-solving is
“driven by the joint development of common problem perceptions and solutions to
similar domestic problems and their subsequent adoption at the domestic level.
Transnational problem-solving typically occurs within transnational élite networks or
epistemic communities, defined as networks of policy experts who share common
principled beliefs over ends, causal beliefs over means and common standards of accruing
and testing new knowledge.”215
What are the problems with norm diffusion through transnational legislative networks?
Transnational learning assumes that governments act rationally, i.e. that they are willing to
change existing policies for ‘superior’ ones.216 Given that diffusion is an informal way of
transnational law-making, its success largely depends on the political will of the relevant actors
of the international society. The ability to engage in transnational learning furthermore
presupposes the existence of a certain level of existing homogeneity between the legal systems
acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against
them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the
punishment duly reflects the seriousness of such terrorist acts; (f) Afford one another the greatest measure of
assistance in connection with criminal investigations or criminal proceedings relating to the financing or support of
terrorist acts, including assistance in obtaining evidence in their possession necessary for the proceedings.”
213 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
214 s 83.18(1) of the Canadian Criminal Code.
215 Holzinger/Knill (n 149) 783 (referring to P.M. Haas).
216 ibid.
41
of the law-creator and the law-recipient.217 Finally, transnational learning is only possible if
governments are actually able to collect all the necessary information on foreign regulatory
designs.218 Not all of these conditions are likely to be fulfilled in every case. Subsequently,
counting on transnational learning may be a rather optimistic rationale.
Transnational problem-solving as the other rationale underlying diffusion of norms through
transnational legislative networks has its drawbacks, too. As Louis de Koker writes in a critique
on the FATF (that could be generalized for the situation of other transnational legislative
networks),
“[t]he FATF remains an exclusive club representing a number of influential nations. Its
decision-taking processes are largely non-transparent, even to the participants and
citizens of its member nations. It acts as an expert group but its expertise is generally not
backed by verifiable data and its experts are generally anonymous.”219
In other words, while the problem with transnational learning is its unreliability, the problem of
transnational problem-solving is the lack of formalized law-making processes and the
exclusivity of membership in transnational networks.
Conclusion: Two Principles of Transnational Counter-Terrorism Law-Making
A principled approach on global counter-terrorism law-making tries to find regularities in the
creation of a set of legal materials that has evolved over the last 50 years. Only in the recent
decade, however, has universal counter-terrorism law-making emerged as a truly experimental
field of international law-making. In this situation, structural principles help to explain the
manifestations of a legal practice.220 On the basis of the present analysis, two main structural
principles of global counter-terrorism law-making stand out.
The first principle of transnational counter-terrorism law-making is the ‘principle of integration’.
Given the (particular) nature of the reasons for cooperation in this field (in particular,
anticipated disastrous external effects of deficient domestic law-making on terrorism as well as
See ibid 791.
See ibid 783.
219 Louis de Koker, ‘Applying Anti-Money Laundering Laws to Fight Corruption’ in Adam Graycar and Russell G.
Smith (eds), Handbook of Global Research and Practice in Corruption (Edward Elgar Publishing 2011) 340, 356.
220 On the concept and use of structural principles see again supra n 7.
217
218
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weakest link-problems), international law-making had to get closer to the normative situation of
individuals ‘on the ground’. The principle of integration contends that the gap between ‘the
international’ and ‘the domestic’ in counter-terrorism is increasingly bridged through an
innovative body of law. This principle has a procedural as well as material dimension.
Procedurally, the principle of integration manifests itself in efforts to make cooperation among
the actors of the international society more efficient, entailing unorthodox unilateral corrections
of cooperation deficiencies (in the form of transnational regulatory resolutions). The principle of
integration helps to understand the phenomenon of imposition of transnational norms as well as
the flourishing of transnational legal networks that assist in shaping and disseminating these
norms. Finally, the principle of integration has the potential to inform the management of direct
effect of transnational regulatory norms, and further account for the tendency to enhance the
link between the domestic legal order and transnational law in counter-terrorism. Materially, the
principle of integration captures the tendency to make international law look more like ordinary
(domestic) statute-law.221 The principle of integration, here, helps to appreciate the depth of the
transnational norms we face in global counter-terrorism law. Integration reflects the ambition of
global law-making to set out ‘model laws’ that can be transposed without great effort into
domestic legal orders. Much in this context has been left untouched by the present analysis. A
point for further research would be to look at the principle of integration in more detail: What
examples can be found for successful ‘integrative’ law-making, when did it fail and why? How
does the principle of integration manage the problem of the diversity of different legal orders?
Are there examples for integration on counter-terrorism at the domestic level?
The second principle is that of integrity.222 It has been argued here that transnational lawmaking triggers the need to safeguard the ‘integrity’ of law-making already at the transnational
level of norm-creation, not just at the level of domestic implementation. The ‘principle of
integrity’ requires global counter-terrorism law-making to be informed and constrained by
See Cogan (n 24) 351 (observing that some suppression conventions “read like domestic statutes”).
My use of the ‘principle of integrity’ differs from that of Ronald Dworkin. Dworkin’s principle of integrity (as
applied to the lawmaker) establishes the requirement to make the “total set of laws morally coherent”, id, Law’s
Empire (Belknap Press 1986) 176. This theory-specific use is not what is meant here. Rather, the principle of integrity
refers to the practice of establishing as well as the need for conformity of transnational law-making with higher
(normative) standards.
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concerns of transnational constitutionalism.223 The actors involved in transnational law-making
are only starting to recognize what the principle of integrity entails in practical terms. Some
developments can be explained by the principle of integrity of law-making, e.g. the reference to
human rights and other standards in suppression conventions and recent law-making
resolutions by the Security Council. However, it cannot be sufficiently stressed that the
consequences of the principle of integrity in transnational law-making are just beginning to be
drawn. This seems to be the field that should attract most attention of scholars: How – on a level
of principle – can it be argued that transnational law-making must be accompanied (guided and
limited) by a conception of ‘transnational constitutionalism’? What are the sources of
transnational
constitutionalism?
What
is
required
by
the
notion
of
transnational
constitutionalism? Are there signs of transnational constitutionalism in the practice of domestic
or international regulatory law-making? How effective is ‘constitutional gatekeeping’ by actors
of an emerging transnational civil society?
Transnational law-making on counter-terrorism is a challenge to international law as we know
it, both in practice as well as on a level of principle. As much as it gives rise to a renewed belief
in the importance of international law, it also radically exposes its imperfections.
For conceptions of transnational constitutionalism see Wen-Chen Chang and Jiunn-rong Yeh, ‘The Emergence of
Transnational Constitutionalism: Its Features, Challenges and Solutions’ (2008) 27 Penn State Int’l LR 89; Nicolas
Tsagourias (ed), Transnational Constitutionalism: International and European Perspectives (CUP 2010).
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